SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

83 

CA 10-01099 

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

VERIZON NEW YORK, INC., PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

LABARGE BROTHERS CO., INC., 

DEFENDANT-RESPONDENT.

(APPEAL NO. 1.)

 

EDWARD C. COSGROVE, BUFFALO (JAMES C. COSGROVE OF COUNSEL), FOR

PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ANN MAGNARELLI

ALEXANDER OF COUNSEL), FOR DEFENDANT-RESPONDENT.

 

Appeal from an order of the Supreme Court, Onondaga County

(Deborah H. Karalunas, J.), entered August 6, 2009. The order, among

other things, granted defendant’s motion for summary judgment

dismissing plaintiff’s complaint and denied plaintiff’s cross motion

for leave to amend the complaint to add Suburban Pipeline Co., Inc. as

a defendant. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action alleging that

defendant damaged plaintiff’s underground cables. In appeal No. 1,

plaintiff appeals from an order granting defendant’s motion for

summary judgment dismissing the complaint and denying plaintiff’s

cross motion seeking leave to amend the complaint to add Suburban

Pipeline Co., Inc. (Suburban) as an additional defendant. In appeal

No. 2, plaintiff appeals from an order denying its motion for leave to

renew and reargue its opposition to defendant’s motion and for leave

to renew and reargue its cross motion.

Addressing first appeal No. 2, we conclude that the appeal must

be dismissed insofar as plaintiff appeals from those parts of the

order denying its motion for leave to reargue its opposition to the

motion and for leave to reargue its cross motion. It is well settled

that no appeal lies from an order denying leave to reargue (see Empire

Ins. Co. v Food City, 167 AD2d 983). With respect to the remainder of

the order, we note that plaintiff failed to address in its brief any

issues concerning it, and we therefore deem any such issues abandoned

(see Ciesinski v Town of Aurora, 202 AD2d 984). 
-2- 83 

CA 10-01099 

With respect to the order in appeal No. 1, plaintiff contends

that Supreme Court erred in denying its cross motion because, although

the statute of limitations had expired, the relation back doctrine

permits it to add a new defendant. We reject that contention. 

Pursuant to the relation back doctrine, a claim may be asserted

against a new defendant after the expiration of the statute of

limitations when, inter alia, “the new [defendant] is united in

interest with the original defendant[] and by reason of that

relationship can be charged with such notice of the institution of the

action that the new [defendant] will not be prejudiced in maintaining

its defense on the merits by the delayed, otherwise stale,

commencement” (Mondello v New York Blood Ctr.–Greater N.Y. Blood

Program, 80 NY2d 219, 226). “In [the] context [of this case], unity

of interest means that the interest of the parties in the

subject[]matter is such that they stand or fall together and that

judgment against one will similarly affect the other . . . Although

the parties might share a multitude of commonalities, including

shareholders and officers . . ., the unity of interest test will not

be satisfied unless the parties share precisely the same jural

relationship in the action at hand . . . Indeed, unless the original

defendant and new [defendant] are vicariously liable for the acts of

the other . . . there is no unity of interest between them” (Zehnick v

Meadowbrook II Assoc., 20 AD3d 793, 796-797, lv dismissed in part and

denied in part 5 NY3d 873 [internal quotation marks omitted]; see

Xavier v RY Mgt. Co., Inc., 45 AD3d 677, 679). Here, despite the

numerous commonalities between defendant and Suburban, plaintiff

failed to establish that Suburban was vicariously liable for the acts

of defendant and thus failed to establish that the relation back

doctrine applies.

We reject plaintiff’s further contention that the court should

have pierced the corporate veils of defendant and Suburban and

concluded that, inasmuch as they were alter egos of each other, they

were united in interest. “Generally, a party seeking to pierce the

corporate veil must establish that ‘(1) the owners exercised complete

domination of the corporation in respect to the transaction attacked[]

and (2) that such domination was used to commit a fraud or wrong

against the plaintiff [that] resulted in the plaintiff’s injury’ ”

(Matter of Goldman v Chapman, 44 AD3d 938, 939, lv denied 10 NY3d 702,

quoting Matter of Morris v New York State Dept. of Taxation & Fin., 82

NY2d 135, 141). Even assuming, arguendo, that Suburban exercised

dominion and control over defendant or a joint owner exercised

dominion and control over both entities, we conclude that plaintiff

failed to establish that any party used its dominion and control to

commit a fraud or wrong against plaintiff (see Morris, 82 NY2d at 141-

142). We thus agree with defendant and Suburban that they were not

united in interest within the context of this action. 

We have considered plaintiff’s remaining contentions in appeal

No. 1 and conclude that they are without merit.

Entered: February 10, 2011 Patricia L. Morgan

Clerk of the Court