FRASER v. LLC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for negligence and damage to real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated January 6, 2023.  The order denied the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve the defendant Lam and Co Consulting, LLC, incorrectly sued herein as L & C Associates, LLC, and pursuant to CPLR 3025(c) for leave to amend the caption to reflect the correct name of that defendant, Lam and Co Consulting, LLC.

ORDERED that the order is affirmed, with costs.

The underlying facts relating to this appeal are set forth in this Court's decision and order on a related appeal (see Fraser v. 134 Quincy Street, LLC, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 2055305 [Appellate Division Docket No. 2021–04266;  decided herewith]).  As is relevant to this appeal, on or about July 22, 2021, the plaintiff moved pursuant to CPLR 306–b to extend the time to serve the defendant Lam and Co Consulting, LLC (hereinafter the defendant), incorrectly sued herein as L & C Associates, LLC, and pursuant to CPLR 3025(c) for leave to amend the caption to reflect the defendant's correct name.  The Supreme Court denied the motion in an order dated January 6, 2023.  The plaintiff appeals.

Since the action was not timely commenced against the defendant, the Supreme Court lacked the authority to extend the plaintiff's time to serve the defendant pursuant to CPLR 306–b (see Ciancarelli v. Timmins, 226 A.D.3d 643, 645, 208 N.Y.S.3d 300;  Henriquez v. Inserra Supermarkets, Inc., 68 A.D.3d 927, 928, 890 N.Y.S.2d 648).  For the same reason, the court lacked the authority to grant leave to amend the caption pursuant to CPLR 3025 (see Ross v. Lan Chile Airlines, 14 A.D.3d 602, 603, 789 N.Y.S.2d 77).

The plaintiff's remaining contentions have been rendered academic in light of our determination.

MILLER, J.P., FORD, LANDICINO and LOVE, JJ., concur.