This is a labor law action. In motion sequence number two, defendant AXA Financial, Inc. (AXA) moves for an order dismissing the complaint as against it on the grounds that it is not the owner of the building where the injury occurred and that it was not the general contractor overseeing the project in question. In motion sequence number three, defendants 1285, LLC (1285), and Jones Lang LaSalle, IP, Inc. (JLL) move for dismissal as against them based on the expiration of the statute of limitations. The motions were argued before Justice Lucy Billings on [*2]June 15, 2017, and further argument was heard in this Part on September 7, 2017. These motions are consolidated for disposition and, upon consolidation the Court denies motion sequence number two and grants motion sequence number three.

As for motion sequence number two, as Justice Billings pointed out when these motions were before her, AXA's second argument — that it was not the general contractor — presents an issue of fact, which is not relevant in a CPLR § 3211 motion. As for the first argument — that AXA does not own the building — the documents AXA has submitted are not sufficient to vitiate all issues of fact relating to its ownership interest. The supplement affidavit of David G. Rogers does not refute plaintiff's claim that there is a relationship between AXA and 1285. Also, it states only that AXA does not own the building currently, and does not state whether it had an ownership interest when the accident occurred.

In motion sequence number three, 1285 and JLL point out that the complaint is based on two accidents at the same worksite. Movants do not argue that the action is untimely as it relates to the second accident, which occurred on July 8, 2013. The first accident, however, occurred on December 5, 2012. For the first accident, therefore, plaintiff was required to serve the complaint by December 5, 2015. Instead, plaintiffs initially brought the action against the wrong building, 787 Seventh Avenue. It did not add 1285 and JLL as defendants until its second amended complaint, which is dated February 8, 2016. Thus, the complaint is untimely on its face as to the first accident.

Plaintiffs argue that the claim is timely against the moving defendants because it relates back to the claim asserted against AXA. Plaintiffs bear the burden of demonstrating the rule's applicability (Garcia v New York-Presbyterian Hosp., 114 AD3d 615, 615 [1st Dept 2014]). To establish timeliness here under the relation back principle, plaintiffs must show 1) that 1285 and JLL are united in interest with AXA, and 2) that 1285 and JLL knew in a timely fashion that, but for a mistake as to the location of the accident they would have been named as defendants in the original complaint (See Cintron v Lynn, 306 AD2d 118, 119-20 [1st Dept 2003]).

In support of their position that the parties are united in interest, plaintiffs note that on the accident dates, 1285 and JLL were owner and managing agent of 1285 Avenue of the Americas, and that on May 20, 2016 — three-and-a-half years after the first accident — 1285 sold the building to RXR 1285 Owner II LLC c/o RXR Realty LLC. A May 23, 2016 article about the sale indicated that at the time of the sale, RXR purchased the building from AXA Financial. They point to additional articles from 2015 that, in discussing the potential sale, mention that AXA owned the building in partnership with JP Moran Chase & Co. They further attach an email from the attorney for the management company for another building, 787 Seventh Avenue, in which the attorney states that AXA owns both buildings although 1285 Avenue of the Americas is managed by JLL. However, in opposition, movants point out that 1285 is the only owner listed on the deed of sale and that the newspaper articles have no evidentiary weight (See Mun v Hong, 109 AD3d 732, 733 [1st Dept 2013]). The email from the managing agent for another building also is not sufficient to establish common ownership. Moreover, plaintiffs still would have to establish that movants realized the mistake in the earlier complaint and knew they were the proper defendants. Thus, 1285 and JLL's motion is granted.

Accordingly, it is

ORDERED that motion sequence number two is denied; and it is further

ORDERED that motion sequence number three is granted and the first and third causes of action are dismissed as against 1285 and JLL.