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Unformatted text preview: 1/18/01 Relating back of 203(f). There are 2 types of relating back: the first is where a claim is time barred but if the defendant had notice of it and it is related to the original complaint, then you can bring it. The second is relating back against another party. 203(d) What if the counterclaim the defendant wants to assert against the plaintiff is time barred? Under the statute, it matters how related the counterclaim is related to the plaintiffs claim. If it arose out of the transaction or occurrence that gave rise to the plaintiffs claim, it is not entirely time barred. He can only assert it as a set off. So if the plaintiff was suing for $10,000, the defendant can only assert a claim for $10,000. If it doesnt arise out of the same transaction, then it will be time barred. Courts have often dealt with how related the case have to be. The courts generally construe it very narrowly. For example, the parties have a 1 year contract with automatic renewal unless one of the parties cancels it. The plaintiff sues for non-payment in 1983 and 1984. The defendant counterclaims that he overpaid in 1977. The courts said it was not the same occurrence. It has to be the mirror image. 203(b) and 203(c) which are almost the same except that one deals with starting a case by filing and the other by service. If you sue one person on time but not the second, if the 2 are united in interest, then it will relate back. The 2 nd Dept. in Brock v. Bua, 83 A.D.2d 61, 443 N.Y.S.2d 407 (2 nd . Dept. 1981), set forth the test for determining whether a claim will relate back to when it was asserted against the original defendant but not against a second defendant. The test consists of 3 prongs: 1) both claims arose out of the same conduct, transaction or occurrence; 2) the new part is united in interest with the original defendant, and by reason of that relationship he can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and 3) the new party knew or should have known that, but for an excusable mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well. This test lasted 10 years until finally adopted by the Court of Appeals in Mondello v. New York Blood Center , 80 N.Y.2d 219, 590 N.Y.S.2d 19 (1992). In Mondello , the court dealt with specifically what united in interest meant. The court determined that the second prong of the Brock test was not met here. The court said that the Blood Center and the Hospital were not united in interest. In Buran v. Coupal , 87 N.Y.2d 173, 638 N.Y.S.2d 405 (1995), the court revisited the Brock test. The court specifically dealt with the third prong of the Brock test which deals with whether leaving the other party out was an excusable mistake. The court said the issue with respect to the third test is notice. But for a mistake, they would have been sued on time. It cant be a tactical decision. It cant be a tactical decision....
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- Spring '04