PEREZ v. DMARC 2007 CD5 LLC (2021)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about November 2, 2020, which, to the extent appealed from as limited by the briefs, granted defendants Garden Property Associates, LLC and Langsam Property Service Corp.'s motion to dismiss the complaint as against them pursuant to CPLR 3211(a)(3), and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs.

This action arises from alleged personal injuries sustained by the collapse of a ceiling in a bathroom of an apartment owned and managed by defendants.  The complaint was correctly dismissed for lack of standing.  It is undisputed that plaintiff Anthony Perez was not injured in defendants' apartment on the day in question and therefore cannot claim that he suffered an injury for which defendants are responsible.  The purportedly injured person, Wilfredo Pabon, deliberately used his cousin's name, Anthony Perez, for many purposes, including this litigation.

Plaintiff's cross motion to amend the complaint to state his purported legal name (Wilfredo Pabon) was properly denied, since plaintiff's explanation that he had been using his cousin's name as an alias since 2003 failed to establish that it was merely a misnomer in the description of the party plaintiff that required amendment (see Neggy Travel Serv., Inc. v. Sabena Belgian World Airlines, 56 A.D.2d 537, 391 N.Y.S.2d 581 [1st Dept. 1977];  Hall v. Integrity Real Estate Props., Inc., 124 A.D.3d 1270, 1271–1272, 1 N.Y.S.3d 632 [4th Dept. 2015]).  Although denominated a motion to amend the complaint to reflect plaintiff's legal name, plaintiff's motion sought in effect to substitute a new party plaintiff, since there is no dispute that plaintiff Anthony Perez exists and that his birthdate and social security number are different from those of Wilfredo Pabon.

Contrary to plaintiff's contention, defendants showed that they would be prejudiced by the amendment of the complaint to state plaintiff's purported legal name, having been provided with false information as to his identity, i.e., Anthony Perez's name and social security number (see Pastrana v. City of New York, 262 A.D.2d 53, 54, 691 N.Y.S.2d 435 [1st Dept. 1999]).  Plaintiff did not reveal his purportedly true identity until his deposition, and made no showing that defendants should have been aware from the outset that he was actually an individual named Wilfredo Pabon.  Moreover, the difficulties that would remain in ascertaining which records pertained to Perez and which to Pabon are manifest.