         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
83
CA 10-01099
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


VERIZON NEW YORK, INC., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LABARGE BROTHERS CO., INC.,
DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


EDWARD C. COSGROVE, BUFFALO (JAMES C. COSGROVE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ANN MAGNARELLI
ALEXANDER OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered August 6, 2009. The order, among
other things, granted defendant’s motion for summary judgment
dismissing plaintiff’s complaint and denied plaintiff’s cross motion
for leave to amend the complaint to add Suburban Pipeline Co., Inc. as
a defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action alleging that
defendant damaged plaintiff’s underground cables. In appeal No. 1,
plaintiff appeals from an order granting defendant’s motion for
summary judgment dismissing the complaint and denying plaintiff’s
cross motion seeking leave to amend the complaint to add Suburban
Pipeline Co., Inc. (Suburban) as an additional defendant. In appeal
No. 2, plaintiff appeals from an order denying its motion for leave to
renew and reargue its opposition to defendant’s motion and for leave
to renew and reargue its cross motion.

     Addressing first appeal No. 2, we conclude that the appeal must
be dismissed insofar as plaintiff appeals from those parts of the
order denying its motion for leave to reargue its opposition to the
motion and for leave to reargue its cross motion. It is well settled
that no appeal lies from an order denying leave to reargue (see Empire
Ins. Co. v Food City, 167 AD2d 983). With respect to the remainder of
the order, we note that plaintiff failed to address in its brief any
issues concerning it, and we therefore deem any such issues abandoned
(see Ciesinski v Town of Aurora, 202 AD2d 984).
                                 -2-                            83
                                                         CA 10-01099

     With respect to the order in appeal No. 1, plaintiff contends
that Supreme Court erred in denying its cross motion because, although
the statute of limitations had expired, the relation back doctrine
permits it to add a new defendant. We reject that contention.
Pursuant to the relation back doctrine, a claim may be asserted
against a new defendant after the expiration of the statute of
limitations when, inter alia, “the new [defendant] 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 [defendant] will not be prejudiced in maintaining
its defense on the merits by the delayed, otherwise stale,
commencement” (Mondello v New York Blood Ctr.–Greater N.Y. Blood
Program, 80 NY2d 219, 226). “In [the] context [of this case], unity
of interest means that the interest of the parties in the
subject[]matter is such that they stand or fall together and that
judgment against one will similarly affect the other . . . Although
the parties might share a multitude of commonalities, including
shareholders and officers . . ., the unity of interest test will not
be satisfied unless the parties share precisely the same jural
relationship in the action at hand . . . Indeed, unless the original
defendant and new [defendant] are vicariously liable for the acts of
the other . . . there is no unity of interest between them” (Zehnick v
Meadowbrook II Assoc., 20 AD3d 793, 796-797, lv dismissed in part and
denied in part 5 NY3d 873 [internal quotation marks omitted]; see
Xavier v RY Mgt. Co., Inc., 45 AD3d 677, 679). Here, despite the
numerous commonalities between defendant and Suburban, plaintiff
failed to establish that Suburban was vicariously liable for the acts
of defendant and thus failed to establish that the relation back
doctrine applies.

     We reject plaintiff’s further contention that the court should
have pierced the corporate veils of defendant and Suburban and
concluded that, inasmuch as they were alter egos of each other, they
were united in interest. “Generally, a party seeking to pierce the
corporate veil must establish that ‘(1) the owners exercised complete
domination of the corporation in respect to the transaction attacked[]
and (2) that such domination was used to commit a fraud or wrong
against the plaintiff [that] resulted in the plaintiff’s injury’ ”
(Matter of Goldman v Chapman, 44 AD3d 938, 939, lv denied 10 NY3d 702,
quoting Matter of Morris v New York State Dept. of Taxation & Fin., 82
NY2d 135, 141). Even assuming, arguendo, that Suburban exercised
dominion and control over defendant or a joint owner exercised
dominion and control over both entities, we conclude that plaintiff
failed to establish that any party used its dominion and control to
commit a fraud or wrong against plaintiff (see Morris, 82 NY2d at 141-
142). We thus agree with defendant and Suburban that they were not
united in interest within the context of this action.

     We have considered plaintiff’s remaining contentions in appeal
No. 1 and conclude that they are without merit.

Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
