Nagi v Ninety-Fourth St., LLC

2024 NY Slip Op 33269(U)

September 18, 2024

Supreme Court, New York County

Docket Number: Index No. 156589/2020

Judge: Judy H. Kim

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 184 

INDEX NO. 156589/2020 

RECEIVED NYSCEF: 09/18/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. JUDY H. KIM 

Justice 

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ADEL NAGI, WESTSIDE STOP ONE DELI CORP., 

Plaintiffs, 

- V -

NINETY-FOURTH STREET, LLC, PARISH PROPERTY 

MANAGEMENT, INC.,SW ENGINEERING COMPANY, 

PLLC, 

Defendants. 

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PARISH PROPERTY MANAGEMENT, INC., 

Plaintiff, 

-againstK & G RESTORATION, INC., 

Defendant. 

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PART 

INDEX NO. 156589/2020 

MOTION DATE 08/14/2023 

MOTION SEQ. NO. 007 

DECISION + ORDER ON 

MOTION 

Third-Party 

Index No. 595103/2022 

04 

The following e-filed documents, listed by NYSCEF document number (Motion 007) 166, 167, 168, 169, 

170,171,172,173,174,175,177,178 

were read on this motion to AMEND CAPTION/PLEADINGS 

On August 20, 2020, plaintiffs commenced this action alleging property damage to their 

leased space (the "Premises") located at 700 Amsterdam Avenue, New York, New York 10025 

("Building") (NYSCEF Doc. No. I [Compl.]). Plaintiffs allege that defendants Ninety-Fourth 

Street, LLC ("Ninety-Fourth"), Parish Property Management, Inc. and SW Engineering Company, 

PLLC, caused damages to the Premises because of improper, careless and negligent work done to 

the fa<;ade of the Building (NYSCEF Doc. No. I [Compl. at ,J,J 6-25]). 

156589/2020 NAGI, ADEL vs. NINETY-FOURTH STREET, LLC 

Motion No. 007 

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NYSCEF DOC. NO. 184 

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RECEIVED NYSCEF: 09/18/2024 

Plaintiffs now move, pursuant to CPLR 3025(b) and 203(c), to amend their complaint to 

add Citi-Urban Management Corp. ("Citi-Urban") as a defendant. In support of their motion, 

plaintiffs' counsel avers that it was "Citi-Urban, not defendant Ninety-Fourth [sic] supervised, 

managed and controlled the construction project that caused the damages at issue" in this action 

(NYSCEF Doc. No. 167 [Glanzberg Affirm. at i117). Plaintiffs note that the American Institute of 

Architects ("AIA") "Standard Form of Agreement Between Owner and Contractor" (the "AIA 

Contract") for the project at issue, produced in discovery in December 2022 (after the statute of 

limitations had elapsed) identifies the owner of the Premises as "Ninety Fourth Street, LLC c/o 

Citi-Urban Properties" (NYSCEF Doc. No. 170 [AIA Contract]) and add that Ninety-Fourth 

Street, LLC's witness, Eric Borkowski, Senior Property Manager for City-Urban Management 

Corp., testified, among other things, that an employee of Citi-Urban regularly visited the subject 

premises during the course of the work (NYSCEF Doc. No. 168 [Borkowski Tr. at pp. 5, 19, 63]). 

The Court notes that Borkowski also testified that City-Urban is a property management company 

which has a management agreement with Ninety-Fourth (Id. at p. 17). 

In opposition, defendants submit a stipulation entered into between Adel Nagi and NinetyFourth in connection with a nonpayment proceeding in Civil Court, New York County between 

Ninety-Fourth as Petitioner, and Adel Nagi as the Respondent. This stipulation, dated January 18, 

2022 (the "Settlement Stipulation"), provides, in pertinent part, that: 

In consideration of the Respondent's agreement to discontinue with prejudice the 

action Adel Nagi and West Stop One Deli Corp. v. Ninety-Fourth Street, LLC, et 

al Index No. 156589/20 (hereinafter "supreme court action") against Defendant 

Ninety-Fourth Street, LLC, the Petitioner agrees to waive the sum of $28,717.09 

leaving a balance of $120.000.00" 

The parties herein agree to execute and submit for filing a Stipulation of 

Discontinuance With Prejudice in the supreme court action against Defendant 

156589/2020 NAGI, ADEL vs. NINETY-FOURTH STREET, LLC 

Motion No. 007 

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NYSCEF DOC. NO. 184 

INDEX NO. 156589/2020 

RECEIVED NYSCEF: 09/18/2024 

Ninety-Fourth Street, LLC by the close of business on Friday, January 21, 2022. 

Notwithstanding the discontinuance, Defendant Ninety-Fourth Street, LLC agrees 

to respond to the discovery demands served upon it to date, appear for a deposition 

in the ordinary course of the litigation, and reasonably provide any other 

documentation requested in the supreme court action. 

(NYSCEF Doc. No. 181 [Stipulation of Settlement at ,J,J4, 1 O] [ emphasis added]). 

Ninety-Fourth Street LLC argues, in sum and substance, that as this action has been 

discontinued as against it, there is no defendant in this case to which Citi-Urban Management is 

related, rendering the relation back doctrine inapplicable. 

DISCUSSION 

Plaintiffs' motion is granted. "Leave to amend pleadings under CPLR 3025(b) should be 

freely given and denied only if there is prejudice or surprise resulting directly from the delay or if 

the proposed amendment is palpably improper or insufficient as a matter oflaw" (McGhee v Odell, 

96 AD3d 449, 450 [1st Dept 2012] [internal citations and quotations omitted]). Here, the 

amendment sought is neither palpably improper nor insufficient as a matter of law (See Stabile v 

Century 21 Dept. Stores, LLC., 2019 NY Slip Op 30517[U], *1-2 [Sup Ct, NY County 2019]). 

While the instant motion was filed on August 14, 2023, after the statute of limitations' 

expiration on November 20, 2020 (accounting for the toll created by Executive Order No. 202.8), 

this does not present a bar to amendment, as the negligence claims plaintiffs seek to assert against 

Cit-Urban remain viable under the relation-back doctrine. This doctrine allows new parties to be 

joined in a previously-commenced action after the expiration of the statute of limitations when: 

( 1) the claims against the new defendants arise from the same conduct, transaction, or occurrence 

as the claims against the original defendants; (2) the new defendants are "united in interest" with 

the original defendants, and will not suffer prejudice due to lack of notice; and (3) the new 

defendants knew or should have known that, but for the plaintiffs' mistake, they would have been 

156589/2020 NAGI, ADEL vs. NINETY-FOURTH STREET, LLC 

Motion No. 007 

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NYSCEF DOC. NO. 184 

INDEX NO. 156589/2020 

RECEIVED NYSCEF: 09/18/2024 

included as defendants (Higgins v City of New York, 144 AD3d 511, 512-13 [1st Dept 2016] 

[internal citations omitted]). 

Here, plaintiffs have established through the AIA Contract that their claims against CitiUrban arise from the same conduct as their original claims against Ninety-Fourth and that CitiUrban, as Ninety-Fourth's managing agent, is "united in interest" with Ninety-Fourth such that it 

knew or should have known that, but for the plaintiffs' mistake, it would have been included as 

defendants (See~' Ellis v Newmark & Co. Real Est., 209 AD3d 520, 521-522 [1st Dept 2022]). 

Contrary to Ninety-Fourth's claim, the Settlement Stipulation does not preclude the 

amendment sought. First, only one of the two plaintiffs here, Adel Nagi, was a party to that 

Settlement Stipulation. Moreover, while the Settlement Stipulation contemplates the future 

discontinuance of this action, no stipulation of discontinuance has been filed in this action, as 

required by CPLR 3217(a)(2), and Ninety-Fourth has not moved to enforce the stipulation of 

settlement and compel execution of the stipulation of discontinuance pursuant to CPLR 2104. As 

a result, Ninety-Fourth remains, at present, a party to this action (See~' Circle Intern. Group, 

Inc. v Anikeyeva, 8 Misc 3d 1007(A) [Sup Ct, Kings County 2005] [a "settlement agreement 

entered into by parties to a lawsuit does not terminate the action unless there has been an express 

stipulation of discontinuance or actual entry of judgment in accordance with the terms of the 

settlement"]; 175 Mulberry Realty, LLC v Kam Cheung Const., Inc., 2010 NY Slip Op 31091[U] 

[NY County 2010]). 

In light of the foregoing, it is 

ORDERED that plaintiffs' motion for leave to amend the complaint to add defendant CitiUrban Management Corp. is granted and the action shall bear the following caption: 

156589/2020 NAGI, ADEL vs. NINETY-FOURTH STREET, LLC 

Motion No. 007 

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NYSCEF DOC. NO. 184 

SUPREME COURT OF THE ST ATE OF NEW YORK 

COUNTY OF NEW YORK 

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ADEL NAGI, WESTSIDE STOP ONE DELI CORP., 

Plaintiff, 

-againstCITI-URBAN MANAGEMENT CORP., 

NINETY-FOURTH STREET, LLC, 

PARISH PROPERTY MANAGEMENT, INC., and 

SW ENGINEERING COMPANY, PLLC, 

Defendants. 

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PARISH PROPERTY MANAGEMENT, INC., 

Third-Party Plaintiff, 

-againstK & G RESTORATION, INC., 

Third-Party Defendants. 

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and it is further 

INDEX NO. 156589/2020 

RECEIVED NYSCEF: 09/18/2024 

Index No. 156589/2020 

Third-Party Index No. 595103/2022 

ORDERED that plaintiffs' Supplemental Summons and Amended Verified Complaint in 

the proposed form annexed to plaintiffs' moving papers (NYSCEF Doc. No. 171) shall be deemed 

served upon all parties who have previously appeared in the action upon plaintiffs' service of a 

copy of this decision and order, with notice of entry, on those parties; and it is further 

ORDERED that plaintiffs shall serve the Supplemental Summons and Amended Verified 

Complaint in the proposed form annexed plaintiffs' moving papers (NYSCEF Doc. No. 171) along 

with a copy of this decision and order, with notice of entry, on Ci ti-Urban Management Corp. in 

accordance with the CPLR within twenty days of the date of this decision and order; and it is 

further 

ORDERED that the parties are to appear for a status conference in Part 4 (80 Centre Street, 

room 308) on October 25, 2024 at 10:00 a.m.; and it is further 

156589/2020 NAGI, ADEL vs. NINETY-FOURTH STREET, LLC 

Motion No. 007 

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NYSCEF DOC. NO. 184 

INDEX NO. 156589/2020 

RECEIVED NYSCEF: 09/18/2024 

ORDERED that counsel for plaintiffs shall, within twenty days of the date of this decision 

and order, serve a copy of this decision and order, with notice of entry, upon the County Clerk (60 

Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 

119), who are directed to mark the court's records to reflect the amended caption pursuant hereto; 

and it is further 

ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's 

Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse 

and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on 

the court's website at the address (www.nycourts.gov/supctmanh). 

This constitutes the decision and order of the Court. 

9/18/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

156589/2020 NAGI, ADEL vs. NINETY-FOURTH STREET, LLC 

Motion No. 007 

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HON. JUDY H. KIM, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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