### Nakamura v Quyang Pan 2024 NY Slip Op 32368(U) July 11, 2024 Supreme Court, New York County Docket Number: Index No. 152958/2021 Judge: James G. Clynes 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. 84 INDEX NO. 152958/2021 RECEIVED NYSCEF: 07/11/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES



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MASAKO NAKAMURA, Plaintiff, - v - QUYANG PAN, Defendant.



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INDEX NO. MOTION DATE 28M 152958/2021 10/27/2022, 11/28/2022 MOTI0'1 SEQ. NO.
__ 0_0_3_0_04_,
__ DECISION+ ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number(Motion 003) 42, 43, 44, 45, 46, 47, 48, 49, 50,51,52,53,54,55, 56, 57,58,59,60,61, 74 were read on this motion to/for DISMISSAL The following e-filed documents, listed by NYSCEF document number (Motion 004) 62, 63, 64, 65, 66, 67, 68, 69, 70, 71. 73, 75, 76, 77, 78, 79, 80, 81, 82 were read on this motion to/for RESTORE 

### This is a personal injury action where plaintiff Masako Nakamura seeks recovery for injuries allegedly sustained as aresult ofa May 13, 2017 motor vehicle accidentinvolvingplaintiff pedestrian and defendant Quyang Pan owner and operator ofa motor vehicle. Upon the foregoing documents, it is orderedthat the Defendant's motionpursuant to CPLR 214, 214 (5), 203 (a), 32I 1and 32I1 (a) (5) for an Order (1) dismissing the Complaint against her
onthe ground that the applicable statute oflimitations period for plaintiffs personal injury claim
wasexpiredbeforethis actionwascommenced (Motion Sequence#003) and the plaintiff'smotion pursuant to CPLR 203 (b) and 203 (c) for an Order relating her claims in this action back to the claims set forth in herpetition for leave to sue the MotorVehicle Accident Insurance Corporation (MVAIC) which was commenced in this court under Index Number 154887/2020 and was based
on the same motor vehicle accident; restoring this action back to active status; and extending

152958/2021 :"AKAMURA, MASAKO vs. PAN, QlJYANG Morion l\o. 003 004
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Plaintiff's time to file a Note ofIssue (Motion Sequence# 004) are consolidated for decision and decided as follows. The court notes that although plaintiffrefers to her motion as a cross-motion it is not a cross-motion, and no cross-motion has been filed. Background By Decision and Order, dated December 6, 2021 (the '"December 2021 Decision and Order") (see NYSCEFDOC NOS 36, 37, and 38), the Court denied defendant's motion to dismiss the Complaint on statute of limitations grounds (Motion Sequence # 001) and denied plaintiff's motion to consolidate this action (Action #2) with her previously dismissed petition for leave to
sue MVAIC under Index Number 154887/2021 (Action #1) (Motion Sequence#002). The December 2021 Decision and Order noted that Motion Sequence Numbers 001 and 002 were denied with leave to renew after the issuance ofa decision by the Appellate Division First Department on theplaintiff's appeal; ofthe Court's September29, 2021 Decision and Order issued under Index Number 154887/2020, that denied Nakamura's petition for leave to sue MVAIC. The December 21, 2021 Decision and Order incorrectly indicated "case disposed," instead of"non-final disposition." In an October 18, 2022 Decision and Order. the Appellate Division, First Department's affirmed the September 29, 2021 Decision and Order that denied and dismissed Nakamura's petition under Index 154887/2020. As an initial matter, the portion ofthe December 6, 2021 Decision and Order indicating that "case disposed" is vacated and the action is restored to active status. Defendantcontends that plaintiff's cause ofaction accrued on the date ofthe accident, May 13, 2017, and thatthe statute oflimitations wouldhaveexpiredon May 13, 2020,butwas extended

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by the issuance ofExecutive Orders tolling the statute oflimitations period from March 20, 2020 to November 3, 2020, thereby extending the expiration date ofthe statute oflimitations period to December 27, 2020. According to the defendant, on the date this action was commenced, March 25, 2021. the statute oflimitations period had been expired for almost four months. [n opposition, plaintiffcontends that the relation back doctrine is applicable here and that the commencement date ofthis personal injury action against the defendant should relate back to July L 2020, the date plaintiff commenced her petition for leave to sue MVAIC under Index Number 154887/2020. This action was commenced with the filing ofthe summons and complaint on March 25, 2021. Defendant's motion seeks dismissal of the Complaint as time-barred because it was commenced after the expiration ofthe three-year limitations period for such claims (CPLR 214 [5]). Specifically, Defendant contends that this action should be dismissed as untimely because the statute of limitations period for plaintiff's claims, which accrued on the date ofthe accident May 13, 201 7, had expired by the date this action was commenced onMarch 25, 2021. Defendant contendsthatthe action is untimelyeveniftheCourtconsidersthatExecutiveOrdersissuedduring the Covid-19 pandemic tolled the statute of limitations period from March 20, 2020 until November 3, 2020. Defendant's opposition contends that the relation-back doctrine is not applicable here because defendant Pan and MVAIC are not defendants united in interest. and because plaintiffwas aware ofdefondant Pan's identity since the time ofthe accident. Discussion The primary legal issue is whether the relation-back doctrine applies in this case. Plaintiff argues in her motion that the relation-back doctrine is applicable and that this action should be related-back to her prior petition for leave to sue MVAIC pursuant to section 5218 ofthe New

15295812021 NAKA\ll'RA, MASAKO

### ,.s. PAN, QU""ANG Motion "lo. OOJ 00-4
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York Insurance Law. The petition was dismissed by the court, and the dismissal was upheld on appeal by the Appellate Division, First Department 

### (see Nakamura v Motor Vehicle Accident Indemnification Corporation, 209AD3d 535 [I st Dept 2022]). Plaintiffcontends that the present action relates backto the July 1, 2020 commencementdate ofthe petition for leave to sue MVAIC under Index 154887/2020, which was denied and dismissed by a Decision and Order, dated September 29, 2021 (NYSCEF DOC NOS 25, 26 under Index Number 154887/2020). The September 29, 2021 Decision and Order that denied and dismissed the petition was affirmed by the Appellate Division, First Department in a Decision and Order dated October 18, 2022 (NYSCEF DOC NO 33). The relation-back doctrine applies where: (I) both claims arise out ofthe same conduct, transaction or occurrence; (2) the new party is 'united in interest' with the original defendant, and by reason ofthat relationship can be charged with such notice ofthe institution ofthe action that he/she will not be prejudiced in maintaining his/her defense on the merits; and (3) the new party knew or shouldhaveknown that, but for an excusable mistake by plaintiffas to the identity ofthe proper parties, the action would have been brought against him/her as well 

### (Buran v Coupal (87 NY2d 173 [1995]). The claims asserted by Nakamura as plaintiffin this personal injury action and the claims asserted by Nakamura as petitioner in the prior petition for leave to sue MVAIC arise from the
same incident, a May 30, 2017 motor vehicle accident involving pedestrian Nakamura and the motor vehicle operated by defendant Pan. In this action, plaintiffNakamura seeks recovery for personal injury against defendant Pan. In the prior petition, which was denied and dismissed, petitioner Nakamura sought leave to sue MVAIC pursuant to Insurance Law 5218. The petition
was denied because the identity ofthe owner and operator ofthe subject vehicle were known.

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Defendant Pan was identified as the owner and operator of the vehicle. The Court held that Nakamuracould not bring an action againstMVAIC until she exhaustedher legal remedies against defendant Pan. As MVAIC may be substituted as a defendant in place ofPan, this court finds that Pan and MVATC are united in interest (Dixon v Motor Veh. Acci. lndem. Corp., 56 AD2d 650 [2d Dept 1977]). Turning to the third element. ""New York law docs not require proof of an 'excusable' mistake, but only the existence ofa mere mistake, on the part ofthe plaintiffseeking the benefit ofthe relation back doctrine." (Davis v Larhette, 39 AD3d 693, 694 [2d Dept 2007]). Nakamura mistakenly petitioned against MVATC beforeexhausting her legal remedies against Pan and failed to name Pan in her initial Petition. Both Pan and MVAIC knew orshould have knownthat but for Nakamura's mistake, the actions against each defendant would have been timely commenced against them. Conclusion As Nakamura has established the elements ofthe relation back doctrine, and Pan fails to identify any prejudice, the claims asserted relate back to the date ofthe original petition under Index Number 154887/2020. Accordingly, it is ORDERED that the portion ofDecision and Order dated December 6, 2021 indicating "casedisposed" is vacated and the action is restored to active status; and it is further ORDERED that Defendant Quyang Pan's motion to dismiss (Motion Sequence# 003) is denied; and it is further ORDERED that Plaintiff Masako Nakamura's motion to relate the claims in the within action back to the claims made under Index Number 154887/2020, to restore this action back to

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active status, and to extend Plaintiff's time to file a Note of Issue (Motion Sequence # 004) is granted; and it is further ORDERED that within 30 days ofentry, Plaintiffshall serve a copy ofthis Decision and Orderupon Defendants with Notice ofEntry and upon the Clerkofthe General Clerk's Office (60 Centre Street, Room 119), who is hereby directed to restore this action to active status and make all required notations thereofin the records ofthe Court; and it is further ORDERED that such service upon the Clerk ofthe 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 onthe court's website at the address Vl'VvW.nycourts.gov/supctmanh). This constitutes the Decision and Order ofthe Court.

7111/2024

DATE CHECK ONE: CASE DISPOSED GRA.'ffED 

# D DENIED APPLICATION: SETILE ORDER CHECKIF APPROPRIATE: INCU:DESTRAl\SFERJREASSIC:'\

152958/2021 NAKA\WRA, :\1ASAKO vs. PAN, QUYANG Motion l'io. 003 004
6 of 6 JAMES G. CLYNES,J.S.C. 1\01\·FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTME:'\T 

# DOTHER 

# D REFERE:'\CE

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