The Third Department, reversing Supreme Court, over a dissent, determined plaintiff should not have been allowed to have more time to serve defendant and amend the complaint to substitute the correct defendant. The action stemmed from a traffic accident involving a bus owned by Yankee Trails. Five days before the statute of limitations ran, plaintiff commenced an action against Yankee Trails World Tours, a different corporation with different addresses and different chief executive officers:
… [W]hether relief pursuant to CPLR 306-b and 305 (c) is available is not merely a matter of discretion. Significantly, “CPLR 306-b cannot be used to extend the time for service against a defendant as to which the action was never validly commenced” … . Similarly, although a court may allow amendment of a summons to correct the name of a defendant pursuant to CPLR 305 (c), such remedy is not available where a plaintiff seeks to substitute a defendant who has not been properly served … .
The fact that defendant and Yankee Trails use the same insurance carrier is of no significance in the circumstances presented; notably, the record reflects that the insurance carrier did not contact Yankee Trails until after the statute of limitations had expired. Nor may we consider plaintiff’s error a mere misnomer that would allow relief to be granted pursuant to CPLR 305 (c) and CPLR 306-b … . Upon this record, plaintiff’s attempt to “proceed against [Yankee Trails as] an unserved and entirely new defendant” after the statute of limitations had run should have been denied, as he failed to obtain jurisdiction over Yankee Trails for relief pursuant CPLR 306-b and, thus, to later amend the complaint pursuant to CPLR 305 … . Fadlalla v Yankee Trails World Tours, Inc., 2019 NY Slip Op 05044, Third Dept 6-20-19