Yesawich, Jr., J. (dissenting). I respectfully dissent.
Pleading amendments which merely add or substitute parties, " 'where the cause of action remains unchanged’ ”, have been liberally allowed (Schleidt v Stamler, 106 AD2d 264, 266, quoting Van der Stegen v Neuss, Hesslein & Co., 243 App Div 122, 131, affd 270 NY 55; see, e.g., Bellini v Gersalle Realty Corp., 120 AD2d 345, 347; cf., Howard v Hachigian, 88 AD2d 1064, 1065, appeal dismissed 57 NY2d 955 [in which a party unsuccessfully attempted to assert a new cause of action against the same party after the Statute of Limitations had run]). Here, however, plaintiff seeks to add not only an additional party, but also a new and distinct cause of action of which the pleadings failed to give any notice (see, CPLR 203 [e]).
By permitting this amendment, Supreme Court effectively extended the Statute of Limitations, thereby encroaching on the Legislature’s prerogative. It is a simple and immutable fact that the fixing of time periods within which actions must be brought is the Legislature’s function. No court has the power to "extend the time limited by law for the commencement of an action” (CPLR 201). Moreover, adopting the majority’s view will produce uncertainty because now the time period within which an action can be brought depends upon the discretion of the particular court presented with motions of this kind. Obviously this policy will not ensure that repose to human affairs which Statutes of Limitations are designed to achieve (see, Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429). For these reasons, I incline to the result reached in Odell v Dalrymple (156 AD2d 967), Clausell v Ullman (141 AD2d 690, 691) and Laudico v Sears, Roebuck & Co. (125 AD2d 960, 961), and accordingly vote to reverse Supreme Court’s order.