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HERE THE RELATION-BACK DOCTRINE SHOULD HAVE BEEN APPLIED TO ADD DEFENDANT DESIGN, WHICH HAD A UNITY OF INTEREST WITH DEFENDANT EISENBACH, DESIGN’S CEO; THE PLAINTIFF HAD AGREED TO DISCONTINUE THE TIMELY ACTION AGAINST EISENBACH BASED ON MISREPRESENTATIONS MADE ON EISENBACH’S BEHALF (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the relation-back doctrine should have been applied to add a defendant, Design, to the law suit. The CEO of Design, Eisenbach, had been timely sued but the action was discontinued based upon misrepresentations made to plaintiff’s counsel on behalf of Eisenbach. Because of that unusual circumstance, based on the unity of interest between Design and its CEO, Eisenbach, plaintiff should have been allowed to add Design as a defendant after the statute of limitations had run for all parties (including Eisenbach):

These appeals involve the application of the relation-back doctrine to an unusual set of facts. Here, the plaintiffs seek to interpose untimely claims against a proposed corporate defendant by relating those claims back under CPLR 203(c) and (f) to an individual defendant who had been timely sued, discontinued from the action before the statute of limitations had run, and re-added as a defendant after the applicable statute of limitations had expired for all parties. Normally, the relation-back doctrine may only be applied when the party being added relates back to another party which has already been timely sued and which is a continuing defendant in the case. Under the peculiar circumstances of this case, where no party objected to, raised any contentions concerning, or appealed the granting of leave to re-add the previously discontinued individual as a party defendant, the relation-back doctrine may be applied. * * *

… [T]here is a fair reading of the record that had Eisenbach not been discontinued from the action based upon inaccurate representations, Design’s role at the construction site would have been revealed and an action timely commenced against it. Further, with Eisenbach named as an original defendant in the action, Design knew or should have known that but for a mistake as to the identity of the parties, it would have been named as a party defendant as well. Bisono v Mist Enters., Inc., 2024 NY Slip Op 03873, Second Dept 7-24-24

Practice Point: Usually the relation-back doctrine can be applied only to add a party with a unity of interest with a timely sued defendant. Here, although the defendant had been timely sued, the action had been discontinued based upon misrepresentations made by the defendant to the plaintiff. Under that unique circumstance, the relation-back doctrine was deemed available to the plaintiff.

 

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