Opinion
July 7, 1988
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Dillon, P.J., Callahan, Denman, Pine and Lawton, JJ.
Order unanimously affirmed with costs. Memorandum: The court properly dismissed plaintiffs' complaint for failure to comply with the applicable Statute of Limitations. The sole cause of action asserted in the complaint alleges that the individual defendants, "by adopting the resolution of February 10, 1978, violated Section 42 of the Transportaion [sic] Law". Presumably, plaintiffs were referring to section 42 Transp. Corp. of the Transportation Corporations Law which deals with the duty of a water works corporation to supply water. An action to recover upon a liability created or imposed by statute must be commenced within three years (CPLR 214). Plaintiffs' action was time barred under that Statute of Limitations. On this appeal, plaintiffs argue that timely service of a summons and complaint in a related action against the Water Board of which these individual defendants are members was sufficient to toll the Statute of Limitations in this action because these defendants are "united in interest" under CPLR 203 (b). We conclude that the "united in interest" rule should not be applied in the circumstances of this case to toll the Statute of Limitations with respect to individual Board members who were not named as party defendants in the prior action. Plaintiffs have failed to demonstrate that their failure at the outset to join the individual Board members was not due to their own inexcusable neglect (see, Liverpool v. Averne Houses, 114 A.D.2d 840, 841, affd 67 N.Y.2d 878; Pfenning v. Agri Business Brokerage Corp., 124 A.D.2d 1013, 1015; Brock v. Bua, 83 A.D.2d 61, 69).