Summary
denying leave to amend because petitioner failed to demonstrate mistake as to identity of proper party; instead, "petitioner's mistake was one of law, which is not the type of mistake contemplated by the [New York] relation-back doctrine"
Summary of this case from Hennelly v. Greenwood Central School DistrictOpinion
Submitted September 29, 1999
November 1, 1999
Howard R. Birnbach, Great Neck, N.Y., for appellant.
Eliot L. Spitzer, Attorney-General, New York, N.Y. (M. Patricia Smith, Jennifer S. Brand, and Carmen R. Torrent of counsel), for respondent.
GUY JAMES MANGANO, P.J., DAVID S. RITTER, DANIEL W. JOY, LEO F. McGINITY, NANCY E. SMITH, JJ.
DECISION ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Industrial Board of Appeals of the New York State Department of Labor, dated September 23, 1998, modifying, after a hearing, an Order to Comply of the Commissioner of Labor of the State of New York dated November 7, 1997, and affirming a second Order to Comply dated November 7, 1997, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Garry, J.), dated March 18, 1999, which denied its cross motion for leave to serve an amended petition adding the Industrial Board of Appeals of the New York State Department of Labor as an additional respondent, granted the motion of the respondent Commissioner of Labor of the State of New York to dismiss the petition for failure to name and serve a necessary party, and thereupon dismissed the proceeding.
ORDERED that the order and judgment is affirmed, with costs.
The petitioner cross-moved to amend its petition after the Commissioner of Labor of the State of New York (hereinafter the Commissioner) moved to dismiss the petition for failure to name and timely serve the Industrial Board of Appeals of the New York State Department of Labor (hereinafter the IBA), a necessary party to this proceeding. The petitioner contends that it did not name and serve the IBA because "it is most unconventional to sue the tribunal that ruled against you on appeal". The Supreme Court was correct in denying the petitioner's cross motion for leave to serve an amended petition against the IBA and in granting the motion of the Commissioner to dismiss for failure to name a necessary party.
This proceeding against the IBA is time-barred because it was not commenced within 60 days after the IBA issued its decision (see,Labor Law § 102 ). Furthermore, the amended petition does not relate back to the original petition pursuant to CPLR 203 (b) (see, Mondello v. New York Blood Ctr. — Greater N.Y. Blood Program, 80 N.Y.2d 219 ; Brock v. Bua, 83 A.D.2d 61 ). Even assuming that the IBA is united in interest with the Commissioner, the petitioner has failed to demonstrate a mistake as to the identity of the proper party or parties at the time of the original pleading (see,Buran v. Coupal, 87 N.Y.2d 173 ). The petitioner's mistake was one of law, which is not the type of mistake contemplated by the relation-back doctrine (see, Somer Wand v. Rotondi, 251 A.D.2d 567 ; State of New York v. Gruzen Partnership, 239 A.D.2d 735 ; Yovane v. White Plains Hosp. Ctr., 228 A.D.2d 436 ).
MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.