SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1197 

CA 16-00708 

PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

JAMES J. MORAN, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

JRM CONTRACTING, INC., DEFENDANT-APPELLANT. 

ROBERT J. LUNN, ROCHESTER, AND FRANK A. ALOI, FOR DEFENDANT-APPELLANT. 

KEITH R. LORD, PHELPS, FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Livingston County

(Robert B. Wiggins, A.J.), entered July 22, 2015. The order, insofar

as appealed from, denied in part defendant’s motion for summary

judgment dismissing the complaint. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the motion is granted

in its entirety, and the complaint is dismissed. 

Memorandum: In April 2004, plaintiff and defendant entered into

a contract for the construction of a single-family residence pursuant

to which plaintiff agreed to pay defendant a certain amount per week

until the project was completed. Plaintiff terminated the contract in

2005 and commenced an action in 2010 against “James Madalena, d/b/a

JRM Construction,” alleging that the parties agreed that Madalena

would complete the construction in nine months but failed to do so. 

Madalena answered and asserted as an affirmative defense that

plaintiff had named the wrong party and that the contract was with

defendant, not Madalena. In February 2014, Supreme Court granted

Madalena’s cross motion for summary judgment dismissing the complaint

on the ground that he was not a proper party defendant. Three months

later, plaintiff commenced this action against defendant, making the

same allegations as in the prior action and asserting, inter alia, a

breach of contract cause of action. The court granted defendant’s

motion for summary judgment dismissing the complaint in part by

dismissing the breach of warranty cause of action, but otherwise

denied the motion. We agree with defendant that the court should have

granted the motion in its entirety.

Defendant established that the action was commenced more than six

years after the breach of contract cause of action accrued and was

therefore time-barred (see CPLR 213 [2]; Mongardi v BJ’s Wholesale

Club, Inc., 45 AD3d 1149, 1150). Contrary to plaintiff’s contention,

the relation back doctrine does not apply herein (see CPLR 203 [b]). 
-2- 1197 

CA 16-00708 

“[T]he relation back doctrine allows a claim asserted against a

defendant in an amended filing to relate back to claims previously

asserted against a codefendant for [s]tatute of [l]imitations purposes

where the two defendants are ‘united in interest’ ” (Buran v Coupal,

87 NY2d 173, 177, quoting CPLR 203 [b]). Here, inasmuch as the prior

action was dismissed, there was no amended pleading (see Walls v

Prestige Mgt., Inc., 73 AD3d 636, 637; Alharezi v Sharma, 304 AD2d

414, 414-415) and, moreover, Madalena was not a codefendant (see

Nevling v Chrysler Corp., 206 AD2d 221, 224-226; Shepard v St. Agnes

Hosp., 86 AD2d 628, 630). Contrary to plaintiff’s further contention,

CPLR 205 (a) also does not apply herein inasmuch as the prior action

was dismissed on the merits (see Hausch v Clarke, 8 AD3d 436, 437; see

generally Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d

375, 380). Contrary to the determination of the court, the relation

back doctrine cannot be “bootstrapped onto CPLR 205 (a).” 

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court