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. CL YNES 

---------------------------------------------------------------------------------x 

MASAKO NAKAMURA, 

Plaintiff, 

- v -

QUYANG PAN, 

Defendant. 

---------------------------------------------------------------------------------x 

PART 

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 a result of a May 13, 2017 motor vehicle accident involving plaintiff 

pedestrian and defendant Quyang Pan owner and operator of a motor vehicle. 

Upon the foregoing documents, it is ordered that the Defendant's motion pursuant to CPLR 

214, 214 (5), 203 (a), 32 I 1 and 32I1 (a) (5) for an Order ( 1) dismissing the Complaint against her 

on the ground that the applicable statute of limitations period for plaintiffs personal injury claim 

was expired before this action was commenced (Motion Sequence# 003) and the plaintiff's motion 

pursuant to CPLR 203 (b) and 203 (c) for an Order relating her claims in this action back to the 

claims set forth in her petition for leave to sue the Motor Vehicle 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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Page I of6 

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NYSCEF DOC. NO. 84 

INDEX NO. 152958/2021 

RECEIVED NYSCEF: 07/11/2024 

Plaintiff's time to file a Note of Issue (Motion Sequence# 004) are consolidated for decision and 

decided as follows. 

The court notes that although plaintiff refers 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 NYSCEF DOC 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 of a decision by the Appellate Division 

First Department on the plaintiff's appeal; of the Court's September 29, 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 of the December 6, 2021 Decision and Order indicating 

that "case disposed" is vacated and the action is restored to active status. 

Defendant contends that plaintiff's cause of action accrued on the date of the accident, May 

13, 2017, and that the statute of limitations would have expired on May 13, 2020, but was extended 

152958/2021 NAKAMURA, MASAKO vs. PAN, Qll\'ANG 

Motion No. 003 004 

2 of 6 

Page 2 of 6 

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NYSCEF DOC. NO. 84 

INDEX NO. 152958/2021 

RECEIVED NYSCEF: 07/11/2024 

by the issuance of Executive Orders tolling the statute of limitations period from March 20, 2020 

to November 3, 2020, thereby extending the expiration date of the statute of limitations period to 

December 27, 2020. According to the defendant, on the date this action was commenced, March 

25, 2021. the statute of limitations period had been expired for almost four months. 

[n opposition, plaintiff contends that the relation back doctrine is applicable here and that 

the commencement date of this 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 of the 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 of the 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 of the accident 

May 13, 201 7, had expired by the date this action was commenced on March 25, 2021. Defendant 

contends that the action is untimely even ifthe Court considers that Executive Orders issued during 

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 plaintiff was aware of de fondant Pan's identity since the time of the 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 of the New 

15295812021 NAKA\ll'RA, MASAKO ,.s. PAN, QU""ANG 

Motion "lo. OOJ 00-4 

3 of 6 

Page J of6 

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NYSCEF DOC. NO. 84 

INDEX NO. 152958/2021 

RECEIVED NYSCEF: 07/11/2024 

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, 209 AD3d 535 [I st Dept 2022]). Plaintiff contends that the present 

action relates back to the July 1, 2020 commencement date of the 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 of the same conduct, 

transaction or occurrence; (2) the new party 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 

he/she will not be prejudiced in maintaining his/her defense on the merits; and (3) the new party 

knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the 

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 plaintiff in 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, plaintiff Nakamura 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 of the owner and operator of the subject vehicle were known. 

152958/2021 NAKAMURA, MASAKO vs. PAN, QlJVANG 

Motion l\o. 003 004 

4 of 6 

Page 4 of6 

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NYSCEF DOC. NO. 84 

INDEX NO. 152958/2021 

RECEIVED NYSCEF: 07/11/2024 

Defendant Pan was identified as the owner and operator of the vehicle. The Court held that 

Nakamura could not bring an action against MVAIC until she exhausted her legal remedies against 

defendant Pan. As MVAIC may be substituted as a defendant in place of Pan, 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 of a mere mistake, on the part of the plaintiff seeking the benefit 

of the relation back doctrine." (Davis v Larhette, 39 AD3d 693, 694 [2d Dept 2007]). Nakamura 

mistakenly petitioned against MVATC before exhausting her legal remedies against Pan and failed 

to name Pan in her initial Petition. Both Pan and MVAIC knew or should have known that but for 

Nakamura's mistake, the actions against each defendant would have been timely commenced 

against them. 

Conclusion 

As Nakamura has established the elements of the relation back doctrine, and Pan fails to 

identify any prejudice, the claims asserted relate back to the date of the original petition under 

Index Number 154887/2020. 

Accordingly, it is 

ORDERED that the portion of Decision and Order dated December 6, 2021 indicating 

"case disposed" 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 

15295812021 NAKAMl'RA, MASAKO vs. PAN, QllYANG 

Motion No. 003 004 

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Page 5 of6 

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NYSCEF DOC. NO. 84 

INDEX NO. 152958/2021 

RECEIVED NYSCEF: 07/11/2024 

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 of entry, Plaintiff shall serve a copy of this Decision and 

Order upon Defendants with Notice of Entry and upon the Clerk of the 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 thereof in the records of the Court; and it is further 

ORDERED that such service upon 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 Vl'VvW.nycourts.gov/supctmanh). 

This constitutes the Decision and Order of the Court. 

7111/2024 

DATE 

CHECK ONE: CASE DISPOSED 

GRA.'ffED D DENIED 

APPLICATION: SETILE ORDER 

CHECK IF APPROPRIATE: INCU:DES TRAl\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 

D OTHER 

D REFERE:'\CE 

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