From Casetext: Smarter Legal Research

Perez v. Paramount Communications, Inc.

Appellate Division of the Supreme Court of New York, First Department
Feb 17, 1998
247 A.D.2d 264 (N.Y. App. Div. 1998)

Opinion

February 17, 1998

Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).


The complaint was properly dismissed as time-barred as against defendants contractors upon the finding that plaintiff?s deposition testimony demonstrated that the accident occurred more than three years before he filed the summons and complaint naming the contractors as defendants. Plaintiff's affidavit in opposition to the motion, which contradicted this prior deposition testimony, was properly rejected (see, Kistoo v. City of New York, 195 A.D.2d 403); and plaintiff's documentary evidence did not support his new assertions. Concerning defendant Paramount, the IAS Court correctly found that it was not an "owner" for purposes of Labor Law liability, since its apparent interest in the underlying land did not give it a proprietary interest in the building where the accident occurred and it neither contracted for the work nor had any control over its performance (cf., Wendel v. Pillsbury Corp., 205 A.D.2d 527). Concerning defendant Madison Square Garden, Paramount's lack of ownership gives it at least one defense not available to Madison Square Garden, and therefore, notwithstanding the parent-subsidiary relationship between them, it was error to find Madison Square Garden united in interest with Paramount such that the action was timely commenced against Madison Square Garden (see, Bari v. Wamskau Realty, 99 A.D.2d 710, affd 64 N.Y.2d 684; Derso v. Volkswagen of Am., 159 A.D.2d 937, 938-939; Porter v. LSB Indus., 192 A.D.2d 205, 215-216). Nevertheless, we affirm, since plaintiff's filing within the limitations period of his motion for leave to add Madison Square Garden as a defendant, which contained a copy of the supplemental summons and amended complaint, should have been deemed a timely commencement of the action as against Madison Square Garden (see, Alexander, 1994 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR C305:2, 1997-1998 Pocket Part, at 95). We have considered the parties' remaining arguments for affirmative relief and find them to be unpersuasive.

Concur — Wallach, J. P., Williams, Tom and Andrias, JJ.


Summaries of

Perez v. Paramount Communications, Inc.

Appellate Division of the Supreme Court of New York, First Department
Feb 17, 1998
247 A.D.2d 264 (N.Y. App. Div. 1998)
Case details for

Perez v. Paramount Communications, Inc.

Case Details

Full title:CARLOS PEREZ, Respondent-Appellant, v. PARAMOUNT COMMUNICATIONS, INC., et…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 17, 1998

Citations

247 A.D.2d 264 (N.Y. App. Div. 1998)
668 N.Y.S.2d 619

Citing Cases

Woroniecki v. Tzitzikalakis

Here, the defendant sufficiently demonstrated that he had divested himself of any ownership interest in the…

Kaczor v. Vanchem, Inc.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following…