### 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 NEWYORK NEWYORK 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.

--------------------------------------------------------------------------------X 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"), ParishProperty Management, Inc. and SWEngineering Company, PLLC, caused damages to the Premises because ofimproper, careless and negligent work done to the fa<;ade ofthe Building (NYSCEF Doc. No. I [Compl. at

### ,J,J 6-25]).

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### [* 1]NYSCEF DOC. NO. 184 INDEX NO. 156589/2020 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. ati117). Plaintiffs note that the American Institute of Architects ("AIA") "Standard Form ofAgreement 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 ofthe 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 ofCiti-Urban regularly visited the subject premises during the course ofthe work (NYSCEF Doc. No. 168 [Borkowski Tr. atpp. 5, 19, 63]). The Courtnotes thatBorkowski also testifiedthat City-Urbanis apropertymanagement company which has amanagement agreement with Ninety-Fourth (Id. atp. 17). In opposition, defendants submit a stipulation enteredinto between Adel Nagi and NinetyFourth in connection with a nonpayment proceeding in Civil Court, New York County between Ninety-Fourth as Petitioner, andAdel Nagi as the Respondent. This stipulation, dated January 18, 2022 (the "Settlement Stipulation"), provides, in pertinentpart, that: In consideration ofthe 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 abalance 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
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### [* 2]NYSCEF DOC. NO. 184 INDEX NO. 156589/2020 RECEIVED NYSCEF: 09/18/2024
Ninety-Fourth Street, LLC by the close ofbusiness on Friday, January 21, 2022. Notwithstanding the discontinuance, Defendant Ninety-Fourth Street, LLC agrees to respond to the discovery demands servedupon 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 ofSettlement 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 ifthere is prejudice or surprise resulting directly from the delay or if theproposedamendmentispalpablyimproperorinsufficientas amatteroflaw" (McGheev 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 oflaw (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 oflimitations' expiration on November 20, 2020 (accounting for the toll createdbyExecutive Order No. 202.8), this does notpresent abarto 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 ofthe statute oflimitations 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 shouldhave known that, but for the plaintiffs' mistake, they would have been

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### [* 3]NYSCEF DOC. NO. 184 INDEX NO. 156589/2020 RECEIVED NYSCEF: 09/18/2024

included as defendants (Higgins v City ofNew 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 vNewmark & 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 ofthe stipulation ofdiscontinuance 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 byparties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry ofjudgment 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 ofthe foregoing, itis ORDERED thatplaintiffs' motion for leave to amendthe complaintto add defendant CitiUrban Management Corp. is granted and the action shall bearthe following caption:

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### [* 4]NYSCEF DOC. NO. 184

SUPREME COURT OF THE STATE OFNEWYORK COUNTY OFNEWYORK

-----------------------------------------------------------------------------X ADELNAGI, WESTSIDE STOP ONEDELI CORP., Plaintiff,-againstCITI-URBAN MANAGEMENT CORP., NINETY-FOURTH STREET, LLC, PARISH PROPERTY MANAGEMENT, INC., and SW ENGINEERING COMPANY, PLLC, Defendants.

-----------------------------------------------------------------------------X PARISH PROPERTY MANAGEMENT, INC., Third-Party Plaintiff,-againstK & G RESTORATION, INC., Third-Party Defendants.

-----------------------------------------------------------------------------X and itis further INDEX NO. 156589/2020 RECEIVED NYSCEF: 09/18/2024

IndexNo. 156589/2020

Third-Party Index No. 595103/2022

ORDERED that plaintiffs' Supplemental Summons and Amended Verified Complaint in theproposed form annexedto plaintiffs' movingpapers (NYSCEF Doc. No. 171) shall be deemed served upon all parties who have previously appeared in the action upon plaintiffs' service of a copy ofthis decision and order, with notice ofentry, on those parties; and it is further ORDERED thatplaintiffs shall serve the Supplemental Summons andAmended Verified Complaintintheproposedform annexedplaintiffs' movingpapers (NYSCEFDoc. No. 171) along with a copy ofthis decision and order, with notice ofentry, on Citi-Urban Management Corp. in accordance with the CPLR within twenty days of the date of this decision and order; and it is further ORDEREDthattheparties are to appearfor a status conferenceinPart4 (80 Centre Street,
room 308) on October 25, 2024 at 10:00 a.m.; and it is further

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### [* 5]NYSCEF DOC. NO. 184 INDEX NO. 156589/2020 RECEIVED NYSCEF: 09/18/2024

ORDEREDthatcounsel forplaintiffs shall, withintwentydays ofthe date ofthis decision andorder, serve a copyofthis decision andorder, withnotice ofentry, uponthe County Clerk (60 Centre Street, Room 141B) andthe Clerk ofthe General Clerk's Office (60 Centre Street, Room 119), who are directedto markthe court'srecords to reflectthe amended captionpursuanthereto; anditis further ORDEREDthat such service uponthe County Clerk andthe Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County ClerkProcedures forElectronicallyFiled Cases (accessible atthe "E-Filing"page on the court's website at the address (www.nycourts.gov/supctmanh). This constitutes the decision and order ofthe Court.

9/18/2024

DATE CHECK ONE:
APPLICATION: CHECKIF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

156589/2020 NAGI, ADEL vs. NINETY-FOURTH STREET, LLC Motion No. 007
6 of 6 HON. JUDY H. KIM, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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