Court Grants Defendant Summary Judgment Dismissing Plaintiff’s Complaint and Denies Plaintiff’s Cross-Motion to Add New Party Via the Relation Back Doctrine

In a decision dated November 15, 2012, Justice Saliann Scarpulla granted defendant Skanska Mechanical and Structural summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and trespass. The plaintiff, Verizon New York Inc., alleged that on May 28, 2008, the defendant, Skanska, damaged 2,400 pairs of Verizon’s underground telecommunication cables while drilling and/or excavating at/or near a manhole that was being rebuilt, at the northeast corner of Church Street and Dey Street, in New York, New York. Verizon sought to recover for the alleged damage to its facilities. The Court determined that the defendant was entitled to summary judgment dismissing the plaintiff’s claims because the defendant proffered sufficient evidence that it was working at a different location on the date of the accident, did not perform any underground excavation work, did not encounter any of plaintiff’s cables while working on the project and did not come into contact with plaintiff’s cables. Based on this evidence, the burden shifted to Verizon to demonstrate a triable issue of fact. As Verizon did not oppose the motion, they failed to raise any triable issues of fact, and the motion was granted. With regard to plaintiff’s cross-motion seeking to amend the caption to substitute Skanska USA Civil Northeast for Skanska Mechanical and Structural as the defendant in this action, the court found that Verizon did not satisfy the three conditions necessary to do so beyond the statute of limitations which had expired on May 28, 2011, pursuant to the relation back doctrine. To benefit from the relation back doctrine, the plaintiff must prove that the claims against both the new and old defendants arose out of the same transaction or occurrence, the new defendant must have been united in interest with the original defendant, and the new defendant must have known or should have known that, but for the plaintiff’s mistake about the proper identity of the party, the action would have been brought against it. The court found that the plaintiff did not show that the aforementioned Skanska entities were united in interest such that vicarious liability exists between the two entities, and the plaintiff’s cross-motion was therefore denied.

Verizon New York, Inc. v. Skanska Mechanical and Structural Inc., Index No.: 104864/10 (N.Y. Co. Sup. Ct., November 15, 2012)

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