Upon the foregoing papers it is ordered that the motion is decided

as follows:

Motion by plaintiff to amend the complaint to add Kathleen Robinson as defendant is denied.

In the within action the plaintiff seeks damages for personal injury in which the plaintiff was allegedly injured while operating a table saw on September 30, 2005 at the premises located at 157 East 74th St. New York, New York.

Plaintiff timely commenced against defendants Robert Bosch Power Tool Corporation, Tyler Tool Co., Inc., Saga House Condominium and Charles Greenthal Management by filing a summons and complaint on September 18, 2008.

Plaintiff now moves for leave to add Kathleen Robinson (hereinafter "Robinson")the owner of the condominium unit, as a defendant, who opposes the motion upon the ground that an action against her is barred by the statute of limitations. Pursuant to CPLR §214, an action for personal injury must be commenced within three years from the date of the accident. Plaintiff contends that a direct claim against Robinson is timely under the relation back doctrine which allows a claim asserted against a defendant in an amended pleading to relate back in time for statute of limitations purposes to claims previously asserted against a co-defendant (see Buran v. Coupal, 87 NY2d 173 [1995]). [*2]

The relation back doctrine set forth in Buran requires the plaintiff to establish that "(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 the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well." Id. at 178.

In support of its argument that the relation-back doctrine applies to the facts of the instant matter requiring the court to join Robinson as a defendant, plaintiff asserts that its motion satisfies the three prong test set forth in Buran. First, it is undisputed that the first prong of the Buran test is satisfied as the claims arise from the same occurrence on September 30, 2005.

As for the second prong, plaintiff simply asserts that since Robinson was the owner of the individual unit where plaintiff was injured, she was "united in interest" with defendant Saga House Condominium and can therefore be charged with notice of the commencement of the action. (see DeLuca v. Baybridge at Bayside Condominium Inc., 5 AD3d 533 [2nd Dept 2004]).

Pursuant to CPLR 203(c), for the purposes of the relation back doctrine the interests must be such that they stand or fall together and that judgment against one will similarly affect the other (see Losner v. Cashline LP, 303 AD2d 647 [2nd Dept. 2003]).

Although the proposed amended complaint alleges that Robinson is liable under Labor Law §240 and §241, "owners of one and two-family dwellings who contract for but do not direct or control the work" are exempt from Labor Law §240 and §241 (6).(see Xirakis v. 1115 Fifth Ave. Corp., 226 AD2d 452 [2nd Dept 1996]). According to the Buran court, the burden is on the plaintiff to establish that Robinson's interests are united with the defendants originally named in the action. However, as the action was originally brought under Labor Law §240 and §241 and Robinson's defense, that she is exempt under Labor Law §240 and §241, is not united with the co-defendants' defenses.

In addition, the proposed complaint alleges that Robinson is liable under Labor Law §200. Labor law §200 is a codification of the common law duty for an employer to provide a safe workplace for employees (See Brasch v. Yonkers Construction Co., 306 AD2d 508[2nd Dept 2003]). However, as a homeowner, an implicit precondition to this duty "is that the party charged with that responsibility have the authority to control the activity [*3]bringing about the injury" (see Ferrero v. Best Modular Homes, Inc., 33 AD3d 847 [2nd Dept. 2006]). Once again, Robinson's defense, as a homeowner, is not united in interest with the co-defendants who are not homeowners.

Accordingly, as the plaintiff has failed to establish that the interests of the proposed defendant stand or fall together with the interests of her co-defendants, the plaintiff has failed to establish a "unity of interest"(see Xavier v. RY Management Co., Inc., 45 AD3d 677 [2nd Dept. 2007]). As the plaintiff fails to satisfy the second prong of the Buran test, the plaintiff's claims against Robinson do not relate back to the claims originally brought against the co-defendants and are time barred.

Even if the plaintiff would have established that the proposed defendant was united in interested with any of the defendants, plaintiff would have had to establish that the proposed defendant knew or should have know that, but for a mistake as to the identity of the proper parties, this action would have been brought against them as well (see Spaulding v. Mt. Vernon Hospital, 283 AD2d 634 [2nd Dept 2001]). Here there is no evidence submitted by the plaintiff establishing that within the three year statutory period Robinson was aware or should have been aware of the lawsuit (see Shapiro v. Good Samaritan Regional Hosp. Medical Center, 42 AD3d 443 [2nd Dept. 2007]) Plaintiff merely argues that Robinson's failure to submit an affidavit that she was not aware and that by virtue of being a owner of the individual unit she must have been aware or should have been aware. However, plaintiff once again fails to present evidence sufficient to meet their initial burden, instead they mistakenly presume the burden is on the proposed defendant. Therefore, as the plaintiff has also failed the third prong of the Buran test, the plaintiff's claims against Robinson do not relate back to the claims originally brought against the co-defendants and are time barred.

Accordingly, the motion to amend the complaint is denied.

Dated: April 6, 2009_____________________________

Bernice D. Siegal, J.S.C