Murphy v West Sterling Realty LLC

Mar 26, 2026
2026 NY Slip Op 50415(U)

Self-represented Plaintiff

Thomas Murphy

Attorney for Defendant West Sterling Realty

Smith, Mazure, P.C.

39 Broadway, 29th Floor

New York, NY 10006

Tehilah H. Berman, J.

The issue is whether a pro se plaintiff may be granted leave to amend a complaint which alleged only property damage to add an additional cause of action for personal injury. Plaintiff moved to amend after the statute of limitations for personal injury expired, and the original complaint contained no facts which gave notice to the defendant that plaintiff was injured.

Thomas Murphy (“Murphy” or “plaintiff“), a pro se plaintiff, filed a summons with endorsed complaint against West Sterling Realty (“West Sterling” or “defendant“) on April 10, 2025, seeking $50,000 with interest for property damage that occurred on December 29, 2022. This court takes judicial notice1 of the notes on a court tool known as “New York Bench,” which indicate that plaintiff was a tenant at a program called “Baltic Street,”2 (the third party defendant) and claimed that there was a hot water leak, and that the entire apartment in which he resided was covered in black mold. The notes further indicate that at a court conference on January 14, 2026, plaintiff, for the first time informed defendant and the court that he would likely move to amend the complaint to seek damages for personal injuries in addition to property damage. On February 11, 2026, plaintiff brought an order to show cause to amend the summons and restore the case to the calendar for a date certain.3 Plaintiff stated the reason as follows: “I also want to add another cause of action for damage caused to person (physical damages) for $50,000.” Plaintiff did not specify the physical damages. On February 18, 2026, defendant West Sterling Realty filed opposition to the motion on the grounds that the added claim was time-barred by the expiration of the three-year statute of limitations that applies to personal injury actions, and that the Civil Court lacks jurisdiction, as the incorporation of the new claim would exceed the court‘s monetary jurisdictional limit of $50,000.

CPLR § 3025(b) provides that a party may amend their pleading at any time by leave of court, and that “leave shall be freely given upon such terms as may be just.” Permission to amend a pleading may only be granted when the proposed amendment is neither “palpably insufficient nor patently devoid of merit,” and the delay in seeking the amendment would not prejudice or surprise the opposing party. Wilmington Sav. Fund Socy., FSB v. Thompson, 2026 NY Slip Op 00283, 2026 NY App. Div. LEXIS 327,*1 (2d Dept. 2026); Carlino v Shapiro, 180 AD3d 989, 990 (2d Dept. 2020). A proposed amendment is deemed “patently devoid of merit if it is time-barred under the applicable statute of limitations.” English v. Brady, 244 AD3d 1739, 1740 (4th Dept. 2025); Deutsche Bank Natl. Trust Co. v McAvoy, 188 AD3d 808, 810 (2d Dept. 2020). “Prejudice” requires a showing that the party opposing the motion has been “hindered in the preparation of its case” or “prevent[ed] from taking some measure in support of its position.” Cirillo v. Lang, 206 AD3d 611, 612 (2d Dept. 2022). A defendant is prejudiced when the plaintiff‘s delay “increases the likelihood that evidence in support of the [defendant‘s] position will be lost and that discovery and trial will be made more difficult.” Milhouse v. City of New York, 2023 U.S. Dist. LEXIS 133594, *9-10 (S.D.NY 2023).

Pursuant to CPLR 214(5), an action to recover damages for personal injury must be commenced within three years. In this case, the date of the occurrence listed on the endorsed complaint was December 29, 2022, and the statute of limitations on plaintiff‘s claim for personal injury expired on December 29, 2025. Plaintiff sought leave to amend the complaint to include a claim for personal injury on February 11, 2026, 44 days after the statute of limitations expired. However, the statute of limitations would not bar the amendment if plaintiff can establish proper applicability of the “relation-back doctrine.” This doctrine, as codified in CPLR 203(f), permits a plaintiff to interpose an additional claim which would otherwise be time-barred, where “the allegations set forth in the original complaint gave notice of the transactions or occurrences” to be proven in the amended complaint, and the cause of action would have been timely if it had been asserted in the original complaint. Mtr. of Eshaghian, 241 AD3d 1465, 1466 (2d Dept. 2025); Campbell v. Bradco Supply Co., 192 AD3d 967, 969 (2d Dept. 2021). See, Buran v. Coupal, 87 NY2d 173, 180 (1995) (“the ‘linchpin’ of the relation back doctrine” is “notice to the defendant within the applicable limitations period“). The relation-back doctrine may not be invoked where the original allegation in the complaint did not provide the defendant notice of the need to defend against the allegation in the amended complaint. Moezinia v Ashkenazi, 136 AD3d 990, 992 (2d Dept. 2016). See also, Cooper v Sleepy‘s, LLC, 126 AD3d 664, 666 (2d Dept. 2015) (“notice must be provided in the original pleading itself“).

Since plaintiff proceeds pro se, this court must judge his pleadings by a more lenient standard than pleadings submitted by counsel. See, e.g., Taylor v. Vt. Dep‘t of Educ., 313 F.3d 768, 776 (2d Cir. 2002). The court “must make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). However, plaintifft‘s pro se status does not exempt him “from compliance with relevant rules of procedures and substantive law.” Philippeaux v. United States, 2025 U.S. Dist. LEXIS 194982, *3 (S.D.NY 2025). For that reason, his pro se status will not excuse his failure to comply with the statute of limitations. See, Brooks v. United States Marine Corps., 2025 U.S. Dist. LEXIS 47674, *2-3 (N.D.NY 2025) (the plaintiff‘s claim was barred by the statute of limitations despite his pro se status). See also, See, In re WorldCom, Inc., 2007 Bankr. LEXIS 4699, *7-8 (S.D.NY Bankruptcy Ct. 2007). In the same vein, plaintiff‘s pro se status does not excuse him from having to provide defendant notice in the original complaint of the allegations in the amended complaint in order to avail himself of the relation back doctrine. Genao v. Rivera, 2024 U.S. Dist. LEXIS 175228, *9-10 (S.D.NY 2024).

This court finds that the endorsed complaint alleging only property damage from mold does not give notice of a personal injury claim. To prove a personal injury claim from mold, “plaintiff must show not only exposure to the toxin and that the toxin is capable of causing the particular illness alleged, i.e., general causation, but also that plaintiff was exposed to sufficient levels of the toxin to cause the illness, i.e., specific causation.” Fraser v. 301-52 Townhouse Corp., 57 AD3d 416, 419 (1st Dept. 2008). See, Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 (2014). Defendant was not on notice to preserve evidence or prepare a defense for bodily injury just because property damage was alleged, and would be prejudiced in preparing for and defending the case. In particular, the delay could increase the likelihood that evidence in support of defendant‘s position will be lost, and discovery and trial will be made more difficult Thus, plaintiff may not invoke the relation back doctrine to circumvent the expiration of the statute of limitations. The proposed amendment is deemed patently devoid of merit as it is time-barred. See, English, supra, 244 AD3d at 1740; Deutsche Bank Natl. Trust Co, supra, 188 AD3d at 810. Since the proposed amendment is time-barred, this court will not consider the jurisdictional limit issue. The motion to amend the summons and complaint is denied. This constitutes the decision and order of the court.

Dated: March 26, 2026

Kings County, New York

Hon. Tehilah H. Berman

Judge of the Civil Court

Notes

1
The court may take judicial notice of undisputed court records and files. Khatibi v. Weill, 8 AD3d 485, 485 (2d Dept. 2004)
2
Third party defendant Baltic Street AEH, Inc. is a supported housing program. https://balticstreet.org/programs/housing-programs/
3
Plaintiff had brought an order to show cause on July 21, 2025 to extend time for service and/or filing of papers, and restoring the case to the calendar for a date certain, but that was denied on August 4, 2025 due to the non-appearance of both sides. It is unclear from the court record why plaintiff moved to have the action restored even though the case was not dismissed.