The Second Department Applies the Relation-Back Doctrine to Add a Party to a Foreclosure Action More than a Decade after Commencement of Same

By: Jonathan H. Freiberger

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); see also Marcotrigiano v. Dental Specialty Assoc., P.C., 209 A.D.3d 850, 851 (2d Dept. 2022); Cotto v. Robinson, 244 A.D.3d 1183, 1186 (2d Dept. 2025). 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.” Buran, 87 N.Y.2d at 177-178 (citations, internal quotation marks and ellipses omitted); see also Marcotrigiano, 209 A.D.3d at 851; Ramirez v. Elias-Tejada, 168 A.D.3d 401, 403 (1st Dept. 2019).

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 Dept. 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).

Against this backdrop, we discuss BAC Home Loan Servicing, LP v. MacPherson, a case decided on May 27, 2026, by the Appellate Division, Second Department. In 2007, the plaintiff lender in BAC commenced a mortgage foreclosure action against the borrower. In 2010, the lender’s motion for summary judgment and for an order of reference was granted, and in 2017, the motion court issued a judgment of foreclosure and sale. Thereafter, a corporation (the “Corp.”), whose owner and CEO was the borrower, moved pursuant to CPLR 5015(a)(4) to vacate the Judgment of foreclosure and sale. The Corp. argued that the borrower transferred title to the subject property to it prior to the commencement of the action but was not named as a defendant in the action. The motion court granted the motion.

In 2018, the lender moved pursuant to CPLR 2004 and CPLR 306-b for an extension of time to serve the Corp. with the summons and complaint, which motion was denied due to the resulting prejudice to the Corp. if the application was granted. In 2021, relying on the Doctrine, the lender moved pursuant to CPLR 3025(b) for leave to add the Corp. as a defendant to the existing action.[2] The motion court granted the motion and the Corp. appealed.

The Second Department affirmed. First the Court noted that leave to amend pleadings is freely granted “provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” and that “[a]mendments that seek to add a time-barred claim or party will be found to be patently devoid of merit, unless the untimeliness can be saved by application of the [D]octrine.” (Citation and internal quotation marks omitted.)

After quoting the Buran three-prong test establishing the applicability of the relation-back doctrine as set forth herein, the Court stated that the “linchpin of the [D]octrine is whether the new defendant had notice within the applicable limitations period.” (Citation and internal quotation marks omitted.) The Court then addressed the three prongs. The Court noted that Corp. did not dispute that the applicability of the first prong. As to the second prong, the Court found that the lender “established that, at the time the action was commenced, [the Corp.] was owned by [the borrower], who was also its CEO, and thus, [the Corp.] was united in interest with [the borrower], who was originally named as a defendant in this action [and, therefore] by reason of that relationship, [the Corp.] could be charged with such notice of the institution of the action that it would not be prejudiced in maintaining its defense on the merits." (Citation, internal quotation marks and brackets omitted.)

As to the third prong, the Court stated:

With regard to the third prong, as [the Corp.] acknowledges, New York law requires merely mistake—not excusable mistake—on the part of the litigant seeking the benefit of the [D]octrine. Further, contrary to [the Corp.]'s contentions, with regard to the third prong, the [D]octrine is not limited to cases where the amending party's omission results from doubts regarding the omitted party's identity or status. Rather, the [D]octrine applies when the party knew or should have known that, but for the mistake—be it a simple oversight or a mistake of law (i.e., that the amending party failed to recognize the other party as a legally necessary party)—the non-amending party would have been named initially. Here, in its capacity as owner of the property that was subject to the mortgage, [the Corp.] could not have understood its omission to be anything other than an oversight. Moreover, nothing in the record before us even suggests that the [lender] initially omitted [the Corp.] in order to obtain a tactical advantage in the litigation. Although omission of a necessary party does not automatically establish a mistake, here there is no evidence of an attempt to game the system. [Citations, internal quotation marks and brackets omitted.]

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] This BLOG has previously addressed the Doctrine (see, e.g., [here], [here] and [here]) and the background information this article is derived from one or more of those articles.

[2] Among other things, the Corp. argued that the finding of prejudice by the motion court in denying the lender’s motion pursuant to CPLR 2004 and CPLR 306-b was law of the case and, therefore, necessitated the denial of the lender’s motion to amend. The Second Department, however, held that it “is not bound by the law of the case doctrine, and … will consider the merits of the [lender]'s motion for leave to amend the complaint to add [the Corp.] as a defendant pursuant to the [D]octrine.”