Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after oral argument on September 11, 2024, pursuant to CPLR § 203(b), Plaintiff's Order to Show Cause ("OSC") seeking leave to serve a second amended Complaint naming Nu-Vision Technologies LLC d/b/a Black Box Network Services as an additional Defendant is DENIED.

Here, Defendants Network Communications Technologies, Inc. and Black Box Corporation of Pennsylvania ("Black Box") met their prima facie burden establishing that the time period to file a lawsuit expired. Wells Fargo Bank, N.A. v. Burke, 155 AD3d 668, 669-670 (2d Dept. 2017). Therefore, it is Plaintiff's burden to establish that said statute of limitations has not expired. Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843, 844 (2d Dept. 2014). Plaintiff does not dispute that by the time they made this motion, the statute of limitations expired on its claims against Nu-Vision Technologies, LLC d/b/a Black Box Network Services. Since the cause of action accrued in May 2015, Plaintiff is now seeking to amend the complaint more than six (6) years after the statute of limitations has expired. See CPLR § 214(5). Plaintiff asserts the relation-back doctrine to justify being permitted to add Nu-Vision Technologies, LLC d/b/a Black Box Network Services as a defendant.

Pursuant to CPLR § 3025(b), a party may amend a pleading "at any time by leave of court". While leave to amend the pleadings is "freely given upon such terms as may be just", where the statute of limitations has run against a proposed additional defendant, the plaintiff bears the burden of demonstrating the applicability of the relation-back doctrine. ^[FN1] As codified in CPLR § 203, "what is commonly referred to as the relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a co-defendant for statute of limitations purposes where the two defendants are 'united in interest."^[FN2] The relation-back "doctrine...gives courts the sound judicial discretion to identify cases that justify relaxation of limitations strictures...to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff's adversary."^[FN3]

"The Court of Appeals has recognized that a more relaxed standard applies where a plaintiff seeks to use the relation-back doctrine by adding a new claim against a defendant who is already a party to litigation as opposed to adding a new defendant."^[FN4] To invoke the relation-back doctrine to join new parties after the statute of limitations has expired, a plaintiff must: 1. establish that the claims against the new defendants arise from the same conduct, transaction, or occurrence as the claims against the original defendants; 2. the plaintiff must show that the new defendants are united in interest with the original defendants and will not suffer prejudice due to lack of notice; and 3. the plaintiff must show that the new defendants knew or should have [*2]known that, but for the plaintiff's mistake, they would have been included as defendants.^[FN5] "All three features must be met for the statutory relation back remedy to be operative".^[FN6]

Here, the claims asserted against the original Defendants and the claims to be added against proposed Defendant Nu-Vision Technologies, LLC d/b/a Black Box Network Services, arose out of the same conduct, transaction, or occurrence. Therefore, Plaintiff satisfies the first requirement. However, Plaintiff fails to satisfy the second requirement, unity of interest, which is more than a notice provision. The test is whether the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other. See Montalvo v. Madjek, Inc., 131 AD3d 678 (2d Dept. 2015). Unity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other. See LeBlanc v. Skinner, 103 AD3d 202, 210 (2d Dept. 2012). Unity of interest fails if there is a possibility that the new defendants may have a defense unavailable to the original defendants. See Higgins v. City of New York, 144 AD3d at 513 (internal quotations marks and citations omitted); see Lord Day & Lord, Barrett, Smith v. Broadwall Mgt. Corp., 301 AD2d 362, 363 (1st Dept. 2003).

Parties are united in interest when their interests in the subject matter is such that they will stand or fall together with respect to the plaintiff's claim. See Xavier v. RY Management Co. Inc., 45 AD3d 677, 679 (2d Dept. 2007). In a negligence action, "the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other."^[FN7] The fact that two defendants may share resources such as office space and employees is not dispositive. Xavier, 45 AD3d at 679. They must also share the same jural relationship in the subject action.^[FN8] "Having common shareholders and officers is not dispositive on the issue of unity of interest and such unity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other."^[FN9]

Records from the New York State Department of State, Division of Corporations and Lexis Nexis search results for corporate filings confirm that existing Defendant Black Box Corporation of Pennsylvania and proposed Defendant Nu-Vision Technologies, LLC d/b/a Black Box Network Services have the same President (Keith Pado) and Treasurer (Brian Fisher), as well as the same location where the Department of State mail process if accepted on their behalf and Registered Agent.^[FN10] While the foregoing clearly demonstrates that these Defendants are related entities, the evidence does not establish that there is a relationship between them giving rise to the vicarious liability of one for the conduct of the other, or that their interests will stand or fall together. Therefore, Plaintiff has not established that these entities are united in [*3]interest. Accordingly, they cannot rely on the relation-back doctrine, regardless of whether they satisfied the third requirement: knowledge of the lawsuit. The application of the relation-back doctrine is not warranted because there was no showing of a "mistake" concerning the proposed Defendant's identity, which would have precluded Plaintiff from bringing an action against them before the statute of limitations expired.^[FN11] Therefore, for the reasons stated herein, Plaintiff's OSC is denied.

This constitutes the Decision and Order of the Court.