        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

613
CA 11-00681
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


SANDRA TINCH-MCNEILL, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ALCOHOL AND DRUG DEPENDENCY SERVICES, INC.,
DEFENDANT-RESPONDENT.


FRANK S. FALZONE, BUFFALO (RONALD HART OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, WILLIAMSVILLE (BRIAN WISNIEWSKI
OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Paula L.
Feroleto, J.), entered September 24, 2010. The order, among other
things, denied plaintiff’s motion for leave to serve and file a first
amended complaint.

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

     Memorandum: Plaintiff commenced this action alleging that
defendant, plaintiff’s former employer, unlawfully discriminated
against her by terminating her employment based on her age, gender,
and race in violation of Executive Law § 296. Plaintiff appeals from
an order denying her motion for leave to serve and file a first
amended complaint containing new causes of action and adding a
defendant. We affirm. “ ‘Leave to amend a pleading should be freely
granted in the absence of prejudice to the nonmoving party where the
amendment is not patently lacking in merit’ ” (McFarland v Michel, 2
AD3d 1297, 1300; see CPLR 3025 [b]; Tag Mech. Sys., Inc. v V.I.P.
Structures, Inc., 63 AD3d 1504, 1505). Where, however, “there has
been an extended delay in moving [for leave] to amend, the party
seeking leave to amend must establish a reasonable excuse for the
delay” (Jablonski v County of Erie, 286 AD2d 927, 928). Here, the
court properly denied the motion with respect to the additional causes
of action inasmuch as plaintiff failed to establish a reasonable
excuse for her delay of nearly seven years in making the motion (see
id.; cf. Boxhorn v Alliance Imaging, Inc., 74 AD3d 1735, 1736).

     Plaintiff further contends that she should have been allowed to
add Richard J. Gallagher, defendant’s executive director, as a
defendant in the action. We reject that contention. Plaintiff does
not dispute that the action against Gallagher is untimely, but instead
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                                                        CA 11-00681

contends that the claims against him relate back to the timely
complaint filed against defendant in August 2003. The relation-back
doctrine, which is codified in CPLR 203 (b), allows the addition of a
party after the expiration of the statute of limitations under three
conditions: (1) both claims arose out of the same conduct,
transaction, or occurrence, (2) the additional party is united in
interest with the original party, and by reason of that relationship
may be charged with notice of the institution of the action such that
he or she will not be prejudiced in maintaining a defense on the
merits, and (3) the additional party knew or should have known that,
but for a mistake by the plaintiff concerning the identity of the
proper parties, the action would have been brought against the
additional party as well (see Buran v Coupal, 87 NY2d 173, 178).
Here, plaintiff and her attorneys knew from the time of her
termination that Gallagher was the individual who made the decision to
terminate her, and plaintiff offers no reason for failing to name
Gallagher as a defendant in the complaint. Thus, the third prong of
the relation-back doctrine is not satisfied because it cannot be said
that, “but for an excusable mistake by plaintiff as to the identity of
the proper parties, the action would have been brought against
[Gallagher] as well” (id. at 178; see Doe v HMO-CNY, 14 AD3d 102, 105-
106).




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
