S. Wine & Spirits of Am., Inc. v. Impact Env't Eng'g, PLLC, 80 A.D.3d 505 (N.Y. App. Div. 2011). · Go Syfert
S. Wine & Spirits of Am., Inc. v. Impact Env't Eng'g, PLLC, 80 A.D.3d 505 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
18 citation events (18 in the last 25 years) across 3 distinct courts.
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discussed Cited as authority (rule) U.S. Bank National Ass'n v. GreenPoint Mortgage Funding, Inc. (2×)
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Eng'g, PLLC , 80 AD3d 505, 505-506 [1st Dept 2011] ["Relation back . . . is dependent upon the existence of a valid preexisting action"]).
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Eng’g, PLLC, 80 AD3d 505, 505-506 [1st Dept 2011]).
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The Court held that the cure was unavailable, as "[r]elation back applies to the amendment of claims and parties and is dependent upon the existence of a valid preexisting action." ( Id. at 506.) In the subsequent action brought under CPLR 205 (a) (104 AD3d 613 [1st Dept 2013]), the Court held that the prior action was "timely" as it was filed within the three-year statute of limitations for negligence, and that relief was available under CPLR 205 (a) "since the statute was created to serve in those cases in which the prior action was defective and so had to be dismissed.'" ( Id. , quoting Car…
Retrieving the full opinion text from the archive…
Southern Wine & Spirits of America, Inc.
v.
Impact Environmental Engineering, PLLC
Appellate Division of the Supreme Court of the State of New York.
Jan 20, 2011.
80 A.D.3d 505
Cited by 14 opinions  |  Published

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 6, 2009, which, inter alia, granted defendants’ motion to dismiss the amended complaint, unanimously affirmed, with costs.

Dismissal of the action was appropriate since plaintiffs failed to comply with the express, bargained-for condition precedent to their right to bring an action against defendants (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 208 AD2d 63 [1995], affd 87 NY2d 927 [1996]; see also Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690-692 [1995]). The agreements between the parties made the submission by plaintiffs of an expert certification to defendants a condition precedent to plaintiffs’ right to bring any legal action against defendants. Plaintiffs failed to submit such certification prior to commencing this action and their efforts to utilize the relation-back doctrine to cure the defective initial complaint are unavailing. Relation back applies to the amendment of claims and par[*506] ties and is dependent upon the existence of a valid preexisting action (see Carrick v Central Gen. Hosp., 51 NY2d 242, 248-249 [1980]). Here, however, the original complaint was brought by plaintiffs in violation of the condition precedent, and plaintiffs cannot rely upon CPLR 203 (f) to cure such failure to comply (see Goldberg v Camp Mikan-Recro, 42 NY2d 1029 [1977]).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Tom, J.P., Andrias, Saxe, Freedman and Manzanet-Daniels, JJ.