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02/16/89 Jose Sanchez, v. Access Associates Et Al.

February 16, 1989

JOSE SANCHEZ, PLAINTIFF-APPELLANT

v.

ACCESS ASSOCIATES ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

535 N.E.2d 27, 179 Ill. App. 3d 961, 128 Ill. Dec. 813 1989.IL.192

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Jose Sanchez, brought an action in the circuit court of Cook County against defendants Access Associates, a limited partnership; Pablo Angeles and Carlito Soriaga, as individuals and as partners of Access Associates; and other unknown general partners of Access Associates. Plaintiff is a tenant in an apartment building that is held in trust for the benefit of defendants. Plaintiff sought damages for injuries that he sustained in falling down a flight of stairs in the building.

The trial court dismissed plaintiff's amended complaint, ruling that the statute of limitations barred the action. Plaintiff appeals, contending that the trial court erred in dismissing the complaint.

We affirm the order of the trial court.

Background

The trial court dismissed the complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(5)). A section 2-619 motion to dismiss admits all well-pled facts contained in the complaint. Loughman Cabinet Co. v. C. Iber & Sons (1977), 46 Ill. App. 3d 873, 876, 361 N.E.2d 379, 382.

In his original complaint, plaintiff named as defendants the Devon Bank, as trustee under trust No. 4074, and the unknown beneficiaries of the trust. Plaintiff alleged that he was a tenant in an apartment building which the unknown beneficiaries were empowered to control and manage. On November 21, 1983, he fell down a stairway in a common area of the building. He further alleged, essentially, that the beneficiaries owed him a duty to maintain the stairway in a safe condition, they breached their duty by allowing the stairs to become unsafe, and that his injuries were the proximate result of their negligence.

Plaintiff filed his original complaint on November 20, 1985, almost exactly two years after being injured. However, the bank trustee was served with process on November 26, several days after the two-year statute of limitations expired. (See Ill. Rev. Stat. 1985, ch. 110, par. 13-202.) At that time only the bank was served with process, as plaintiff did not know the identity of the trust beneficiaries.

The bank moved to dismiss itself from the action. The bank contended that, on the date of the injury, its sole responsibility regarding the building was to hold legal title to the property, subject to the beneficiaries' direction to convey. The bank did not exercise any of the incidents of ownership, management or control. Additionally, the bank revealed the identity of the trust beneficiaries: Access Associates, a limited partnership; and the partners, Angeles and Soriaga. The trial court granted the bank's motion to dismiss it from the action. The court granted plaintiff leave to file an amended complaint naming the beneficiaries as defendants.

On March 14, 1986, plaintiff filed his amended complaint. The named defendants were all served with ...


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