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PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO CORRECTLY NAME THE DEFENDANT PURSUANT TO CPLR 305(C) AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s motion to amend to complaint to reflect the correct name of the defendant should have been granted:

In September 2016, plaintiff allegedly slipped and fell in the bathroom of a McDonald’s restaurant located in the Town of Williamson, Wayne County. In August 2019, plaintiff commenced this action against defendant to recover for the injuries that he sustained. Defendant answered, asserting, among other affirmative defenses, a lack of personal jurisdiction and that she is not a proper party because she does not own, operate, maintain or control the business in which plaintiff was allegedly injured. Defendant subsequently moved to dismiss the complaint on the same grounds, contending that “Nancyone, Inc.,” a New York corporation for which defendant is a corporate officer, owned and operated the subject McDonald’s restaurant and that it had not been properly served with the summons and complaint prior to the expiration of the statute of limitations. …

Plaintiff contends that Supreme Court erred in denying that part of his cross motion that sought leave to amend his complaint pursuant to CPLR 305 (c). We agree. As relevant here, “[i]f a defendant has been misnamed in the caption of the summons and complaint, but has nonetheless been properly served within the limitations period, amendment of the summons and complaint should be allowed in the absence of demonstrated prejudice to a substantial right” … . Kachadourian v Wilkes, 2020 NY Slip Op 07972, Third Dept 12-24-20

 

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