Injured person can amend complaint to assert claims against third parties under CPLR 1009

When you have been injured due to an accident, it is common to look to litigation as a way of compensation for pain, suffering, lost wages and other damages, especially when the accident was not your fault. But what happens when you start a litigation against one party when, in fact, there is another, necessary party that should have been sued but was not?

Loo was injured at work one day when she slipped and fell in the bathroom, breaking her ankle. After missing work, suffering pain and other damages, Loo decided to sue for damages, but did not know exactly who to sue. She was not able to sue her employer so instead she sued the owner of the building in which she worked. Once the litigation began she found out that her employer agreed to protect the building owner from any damages arising from its use of the building (also known as opens in a new windowindemnification). The building owner then sued Loo’s employer on the basis that Loo’s employer agreed to pay for any damages.

Loo’s employer, after being brought into the action by the building owner then sued another party, the cleaning company the employer had hired to clean and maintain the facilities. The employer stated in the complaint that the cleaning company had agreed to protect it from any damages arising from work the cleaning company did or was supposed to do according to the contract.

Loo’s attorney, upon learning this new information about the cleaning company, realized he needed to sue the cleaning company directly, as it was the cleaning company that may be ultimately responsible for the damages sustained by Loo.

In order for Loo to add the cleaning company in the litigation, she would have to use what is called an impleader. An impleader is a procedure whereby a plaintiff adds a third party into a lawsuit because that third party is liable for damages to the plaintiff. When Loo’s attorney filed an impleader, including the cleaning company as a defendant, the cleaning company’s attorney rejected the complaint on the basis that the statute of limitations[1] had already expired and that Loo’s attorney had served its amended complaint too late.

Loo’s attorney came to Richard A. Klass, Your Court Street Lawyer, for assistance. Mr. Klass recognized that CPLR 1009 allows that within 20 days of service of an answer to the third-party complaint upon the plaintiff’s attorney, the plaintiff may amend its complaint without leave of court to assert against the third party any claim plaintiff has against the third party defendant.

Furthermore, when a pleading is mailed, CPLR 2013(b)(2) adds five days to the initial 20 days provided for in CPLR 1009.

Mr. Klass, upon reviewing the affidavits of service, quickly realized that based upon these two provisions of the CPLR, Loo’s attorney may, in fact, have served the amended complaint in time.

The Court agreed with Mr. Klass, determining that Loo’s attorney had served the amended complaint with 2 days to spare. Therefore, the cleaning company, the company who may ultimately be responsible for Loo’s injury, has been included as a defendant that Loo may look to for payment of her damages.

[1] The statute of limitations is part of our basic set of laws which provides a time limit in which a plaintiff can sue a defendant. For a case of personal injury, a plaintiff has only 3 years from the date of the injury to sue for damages.