CPLR R. 305(c) Amendment to Correct a Misnomer

CPLR R. 305 Summons; supplemental summons, amendment

(c) Amendment

Smith v Giuffre Hyundai, Ltd., 2009 NY Slip Op 02587 (App. Div., 2nd, 2009)

"Under CPLR 305(c), an amendment to correct a misnomer will be
permitted if the court has acquired jurisdiction over the intended but
misnamed defendant provided that . . . the intended but misnamed
defendant was fairly apprised that [it] was the party the action was
intended to affect [and] would not be prejudiced' by allowing the
amendment" (Holster v Ross, 45 AD3d 640, 642, quoting Simpson v Kenston Warehousing Corp., 154 AD2d 526, 527; see Perrin v McKenzie, 266 AD2d 269, 270; Pugliese v Paneorama Italian Bakery, 243 AD2d 548; Ober v Rye Town Hilton, 159 AD2d 16; Creative Cabinet Corp. of AM v Future Visions Computer Store, 140 AD2d 483).

Here, because the plaintiff never established that she obtained
jurisdiction over Giuffre White Plains, her cross motion was properly
denied. First, by serving on the Secretary of State a summons and
complaint naming Giuffre Brooklyn as the defendant, the plaintiff did
not thereby also obtain jurisdiction over the entirely separate
corporate entity of Giuffre White Plains, despite their having the same
forwarding address. Upon receipt of the summons by the Secretary of
State, service was complete and jurisdiction was obtained only over the
named party (see Associated Imports v Amiel Publ., 168 AD2d 354; Micarelli v Regal Apparel, 52 AD2d 524; see generally Siegel
NY Prac § 70, at 110 [3d ed]). Moreover, the Secretary of State's
forwarding of process properly served on it for Giuffre Brooklyn did
not thereby confer jurisdiction over Giuffre White Plains (see generally CPLR
311[a][1]). Further, there is no evidence in the record that the
process delivered personally to the Brooklyn address was delivered to a
person authorized to accept service of process for Giuffre White Plains
(see CPLR 311[a][1]; Rinzler v Jafco Assoc., 21 AD3d 360, 362; Feszczyszyn v General Motors Corp., 248 AD2d 939, 940-941; Pugliese v Paneorama Italian Bakery Corp., 243 AD2d 548, 549; cf. Balderman v Capital City/Am. Broadcasting Co.,
233 AD2d 861, 862). In the absence of jurisdiction over Giuffre White
Plains, the Supreme Court properly denied the plaintiff's cross motion
for leave to amend the caption.

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