Hemmings v. St. Marks Housing Associates, L.P.

Aug 11, 1997
Versions:242 A.D.2d 284
661 N.Y.S.2d 964
1997 N.Y. App. Div. LEXIS 8286

In an action to recover damages for personal injuries, the defendant Blakel Construction Corporation appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Kings County (Vinik, J.), dated April 22, 1996, as denied its motion to dismiss as untimely the amended complaint insofar as asserted against it, and (2) an order of the same court, dated March 6, 1997, as, upon reargument, adhered to so much of the prior determination as denied that branch of its motion which was to dismiss the second cause of action asserted in the amended complaint.

Ordered that the appeal from the order dated April 22, 1996, is dismissed, as that order was superseded by the order dated March 6, 1997, made upon reargument; and it is further,

Ordered that the order dated March 6, 1997, is affirmed insofar as appealed from; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The Supreme Court properly concluded that the defendant Blakel Construction Corporation (hereinafter Blakel) is united in interest with the defendant St. Marks Housing Associates, L.P. for the purposes of the alleged violations of Labor Law §§ 240 and 241 in the amended complaint (see, Buran v Coupal, 87 NY2d 173; Raschel v Rish, 69 NY2d 694, 697; Desiderio v Rubin, 234 AD2d 581; Connell v Hayden, 83 AD2d 30, 42-43). The amended complaint therefore relates back to the timely filing of the original complaint with respect to the plaintiff’s claims under Labor Law §§ 240 and 241 (see, CPLR 203 [c]; Buran v Coupal, supra; Mondello v New York Blood Ctr.— Greater N. Y. Blood Program, 80 NY2d 219; Brock v Bua, 83 AD2d 61), and Blakel’s motion to dismiss the amended complaint as untimely was properly denied as to those claims.

Blakel’s remaining contentions are without merit. Bracken, J. P., Copertino, Altman and Florio, JJ., concur.