Wednesday, December 21, 2016

The relaton back doctrine.

The Appellate Division reversed the motion court and dismissed the complaint in this action stemming from a personal injury action that settled.  After the statute of limitations had elapsed, pursuant to CPLR 214(5), plaintiff filed this action.

Plaintiff's reliance on the relation back doctrine to render this independent action timely is unavailing, since he is not seeking to amend a pleading in a timely-commenced action, pursuant to CPLR 203[f].

Plaintiff would have the complaint relate back to the date of a complaint filed against him in a prior action or, alternatively, to the date of his answer in that prior action, which did not itself assert any counterclaims.  There is no authority supporting such an expansion of the relation back doctrine.

Case:  Davis v. Sanseverino, NY Slip Op 08321 (1st Dep't December 13, 2016)

Here is the decision.

Tomorrow's issue:  A request for an adjournment of the return date and for an extension of time to file an opposition.