RIVERA v. BEER GARDEN INC (2008)

Order, Supreme Court, New York County (Carol Edmead, J.), entered April 12, 2007, which denied defendant's motion to dismiss the complaint as time-barred and granted plaintiff's cross motion to the extent of amending the caption and authorizing service of the amended summons and complaint nunc pro tunc, unanimously affirmed, without costs.

Plaintiff was injured in August 2002 at a nightclub popularly known as The Roxy.   The summons and complaint were filed in May 2005, within the applicable three-year statute of limitations for personal injury, but misnamed The Roxy Roller Rink, Inc. as the defendant.   Alerted to its mistake, in September 2005 plaintiff effected service of the original summons and a supplemental summons and amended complaint on defendant.

We reject Beer Garden's argument that the action is time-barred as against it because the supplemental summons and amended complaint naming it was not filed until after the statute of limitations had run.   The original summons and complaint were timely filed.   Leave to amend to correct defendant's name was properly granted, even after the statute of limitations had run, because of evidence that defendant, who was aware it was the intended defendant, had in fact been served and would not be prejudiced by granting the amendment (CPLR 305[c];  Manocchio v. Wohlfeil, 206 A.D.2d 908, 614 N.Y.S.2d 837 [1994] ).