Today’s BLOG deals with the “Relation Back Doctrine” (the “Doctrine”)[1], which, inter alia, “allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are “‘united in interest.’” Buran v. Coupal, 87 N.Y.2d 173, 177 (1995) (citation omitted). The Doctrine was codified by the CPLR. See, e.g., CPLR 203(b), (c), (e) and (f). As explained by the Court of Appeals, the “doctrine enables a plaintiff to correct a pleading error by adding either a new claim or a new party after the statutory limitations period has expired [and] thus 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.” Id. at 177-178 (citations, internal quotation marks, and ellipses omitted).
Under the Doctrine, claims against a later added party would relate back to the commencement date of the action if: “(1) both claims arose out of the same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that they will not be prejudiced in maintaining their 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 [them] as well.” Nemeth v. K-Tooling, 40 N.Y.3d 405, 411 (2023) (citations, internal quotation marks and brackets omitted); see also O’Halloran v. Metropolitan Transp. Authority, 154 A.D.3d 83, 86-87 (1st Dep’t 2017).
A “more relaxed” standard is recognized in the application of the Doctrine when a party seeks to add a new claim against an existing party as opposed to adding a new party to an existing action. O’Halloran, 154 A.D.3d at 86. In such circumstances, “the relevant considerations are simply (1) whether the original complaint gave the defendant notice of the transactions or occurrences at issue and (2) whether there would be undue prejudice to the defendant if the amendment and relation back are permitted.” Id. at 87 (citations omitted).
On July 30, 2025, the Appellate Division, Second Department, had occasion to address the Doctrine in U.S. Bank National Association v. 1702 Dean, LLC, a mortgage foreclosure action.[2] The facts of U.S. Bank are somewhat tortured and will be simplified herein for editorial purposes. In 2006, the borrower executed a note in the amount of $600,000 and secured her repayment obligations with a mortgage on residential property located in Brooklyn, New York. Upon the borrower’s death, the mortgaged premises was transferred to Gerald, one of the borrower’s sole surviving heirs. The lender commenced a foreclosure action against Gerald in 2010. In the complaint, the “Block” number in the tax map designation was incorrectly listed, and that error was carried over to the filed notice of pendency.[3] Gerald defaulted in appearing and, in 2013, the lender’s motion for a default judgment and for the appointment of a referee to compute was granted.[4] Later in 2013, Gerald conveyed the property to an unrelated LLC. Thereafter, a second and a third notice of pendency were filed, which, again, contained incorrect “Block” numbers. A judgment of foreclosure and sale was issued in February of 2017. In April of 2017, a fourth notice of pendency was filed, which contained, for the first time, a proper property description. In November of 2017, the lender withdrew the judgment of foreclosure and sale.
The LLC moved to intervene in the action in July of 2018, and, in October of 2018, the lender moved for leave to file a supplemental summons and amended complaint to add the LLC as a necessary party. Both motions were granted by the trial court. The supplemental summons and amended complaint were filed by the lender along with a notice of pendency containing a proper property description. “The LLC interposed an answer in which it asserted various affirmative defenses, including that the action was barred by the statute of limitations and that it was not bound by any proceedings in the action because the notice of pendency was not properly indexed against the premises.” The lender moved for summary judgment against the LLC, and the LLC cross-moved for summary judgment dismissing the amended complaint as time-barred. In support of its cross-motion, the sole member of the LLC submitted an affidavit in which he averred that “the LLC obtained its interest in the premises pursuant to the deed dated February 13, 2015, which was recorded on March 11, 2015, that no notice of pendency was filed against the premises at that time, and that he was not on notice of this foreclosure action when the LLC acquired the premises.” The lender opposed the cross-motion by arguing that the action was timely commenced against the LLC by virtue of the Doctrine. Both motions were denied. The LLC appealed.
The Second Department reversed. The Court found that the LLC met its initial burden of demonstrating that the amended complaint was filed outside the six-year statute of limitations period for foreclosure actions[5] and, in opposition, the lender failed to meet its burden of demonstrating the applicability of the Doctrine.
In addition to the legal issues previously discussed herein, the Court noted that the “linchpin of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period. (Citations and internal quotation marks omitted.) The Court noted compliance with the first “prong” of the Doctrine’s test because the claim arose from the same conduct, transaction or occurrence. As to the second “prong,” however, the Court found that Gerald and the LLC were not united in interest. “Here, a judgment of foreclosure and sale would not similarly affect Gerald and the LLC, as Gerald no longer has an interest in the premises, while the LLC would have its interest in the premises foreclosed. Moreover, any claim of identical interests is undermined by Gerald’s default in appearing or answering the complaint.” (Citations, internal quotation marks, and ellipses omitted.)
Compliance with the third “prong” was missing as well because the “failure to name the LLC as a defendant in the original complaint was not a mistake on the plaintiff’s part of which the LLC could have been aware, as there would have been no reason to name the LLC when the action was commenced since the LLC had no interest in the premises at that time.” Further, and “most importantly” there was no showing that the LLC had actual notice of the action prior to the expiration of the statute of limitations. While the LLC acquired its interest in the property prior to the expiration of the statute of limitations, “the notices of pendency filed before the LLC acquired the premises did not, in fact, provide constructive notice of the action as they were indexed against the wrong block and, thus, the wrong property.” (Citation omitted.) Further, the sole member of the LLC averred that he did not have actual notice of the pendency of the action. Finally, the Court noted that while the LLC may have been chargeable with notice of the lender’s recorded mortgage, “the recording of the mortgage did not provide actual notice of the foreclosure action, as required under the relation-back doctrine.” (Citation omitted.)
[1] This BLOG has previously addressed the “Relation Back Doctrine.” See, e.g., [here] and [here].
[2] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.
[3] This BLOG has written numerous articles addressing notices of pendency. To find such articles, please see the BLOG tile on our website and type “notice of pendency” into the “search” box. Simply stated, a notice of pendency (or lis pendens) is a provisional remedy governed by Article 65 of the CPLR. The purpose of a notice of pendency is to put defendants and the world on constructive notice of the full scope of the rights claimed by plaintiff to defendant’s real property. Sjogren v. Land Assoc., LLC, 223 A.D.3d 963, 965 (3rd Dep’t 2024).
[4] This BLOG has written numerous articles on Referee’s in mortgage foreclosure actions. See. e.g., [here], [here], [here] and [here].
[5] This BLOG has written numerous articles addressing statute of limitations issues in residential mortgage foreclosure actions. To find such articles, please see the BLOG tile on our website and type “statute of limitations mortgage foreclosure” into the “search” box.
