ACHTZIGER v. Merz Metal & Machine Corp., D.V. Brown & Associates, Inc., Mollenberg-Betz, Inc., and Ferguson Electric Construction Co., Inc., Defendants-Respondents. (2002)

Plaintiff commenced this action against defendant Fuji Copian Corp. (Corp) and others seeking damages for injuries he sustained when he fell from a ladder attached to a large machine.   Although plaintiff alleges in the complaint that Corp was, inter alia, the manufacturer of the machine, the machine was in fact purchased by plaintiff's employer from Fuji Kagakushi Kogyo Company, Ltd. (Kogyo) more than three years before Corp came into existence.   Kogyo later changed its name to Fujicopian Company, Limited (Limited).   In the complaint, plaintiff asserts causes of action against Corp for negligence, failure to warn, breach of express and implied warranties, and strict products liability.   Corp moved for summary judgment dismissing the complaint and all cross claims against it on the ground that it did not manufacture the machine in question, and plaintiff cross-moved to amend the summons and complaint by naming Limited as a defendant in place of Corp.

We conclude that Supreme Court erred in denying Corp's motion.   In support thereof, Corp established that it had nothing to do with the subject machine, and plaintiff failed to raise a triable issue.   In fact, in seeking to substitute Limited for Corp as a defendant by way of his cross motion, plaintiff thereby acknowledged that Corp should not be a party to this lawsuit.

 We further conclude that the court erred in granting plaintiff's cross motion.   Contrary to plaintiff's contention, the summons and complaint cannot be amended to add Limited as a party defendant pursuant to CPLR 305(c) or 2001 where, as here, the defect is jurisdictional (see Coleman v. Vansteen, 227 A.D.2d 919, 920, 643 N.Y.S.2d 264).   Amendment of a summons and complaint to reflect the proper name of a defendant should be permitted only if “(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought” (Ober v. Rye Town Hilton, 159 A.D.2d 16, 20, 557 N.Y.S.2d 937;  see Balderman v Capital City/Am.  Broadcasting Co., 233 A.D.2d 861, 862, 649 N.Y.S.2d 284;  Hayes v. Apples & Bells, 213 A.D.2d 1000, 1001, 624 N.Y.S.2d 490).   In this case, plaintiff's service on Corp does not constitute service on Limited (see Feszczyszyn v. General Motors Corp., 248 A.D.2d 939, 940-941, 669 N.Y.S.2d 1010;  cf.  Bracken v. Niagara Frontier Transp. Auth., 251 A.D.2d 1068, 1068-1069, 674 N.Y.S.2d 221;  Balderman, 233 A.D.2d at 862, 649 N.Y.S.2d 284).  “ ‘This is not a case where a party is misnamed * * *;  rather it is a case where the plaintiff seeks to add or substitute a party defendant’ ” (Jordan v. Lehigh Constr. Group, 259 A.D.2d 962, 689 N.Y.S.2d 322).   Plaintiff presented no evidence that Corp is a designated agent for service of process upon Limited (see Feszczyszyn, 248 A.D.2d at 941, 669 N.Y.S.2d 1010).   Plaintiff also failed to show that Limited “is an ‘involuntary’ agent in the absence of ‘such complete control by the parent over the subsidiary that it negates the conclusion that the subsidiary is operated as a separate and independent entity’ ” (id., quoting Brandt v. Volkswagen AG., 161 A.D.2d 1149, 1150, 555 N.Y.S.2d 957;  see Derso v. Volkswagen of Am., 159 A.D.2d 937, 937-938, 552 N.Y.S.2d 1001).   The evidence submitted by Corp establishes that it is a subsidiary of Limited but is nevertheless a separate and distinct entity from Limited (see Derso, 159 A.D.2d at 938, 552 N.Y.S.2d 1001).

 We further reject plaintiff's contention that Limited should be added as a party defendant pursuant to CPLR 203(b) and 3025(b).  Plaintiff failed to show that Limited is united in interest with Corp. “The mere existence of a parent-subsidiary corporate relationship is insufficient to establish a unity of interest between the two corporations” (Feszczyszyn, 248 A.D.2d at 940, 669 N.Y.S.2d 1010;  see Derso, 159 A.D.2d at 938-939, 552 N.Y.S.2d 1001).   Related corporations such as Corp and Limited “are united in interest only where one corporation is vicariously liable for the acts of the other,” and, in order for such vicarious liability to exist, “ ‘[t]he parent corporation must exercise complete dominion and control [over] the subsidiary's daily operations” ’ (Feszczyszyn, 248 A.D.2d at 940, 669 N.Y.S.2d 1010;  see Hilliard v. Roc-Newark Assoc., 287 A.D.2d 691, 692, 732 N.Y.S.2d 421;  Rotoli v. Domtar, 224 A.D.2d 939, 940, 637 N.Y.S.2d 894).   Plaintiff failed to show that Limited exercises complete dominion and control over Corp (see Feszczyszyn, 248 A.D.2d at 940, 669 N.Y.S.2d 1010).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint and cross claims against defendant Fuji Copian Corp. are dismissed and the cross motion is denied.

MEMORANDUM: