SMITH v. Carol Radin, et al., nonparty-respondents. (2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Nelson, J.), dated May 28, 2008, which denied his motion pursuant to CPLR 305(c) and CPLR 3025(b) to deem a supplemental summons and amended complaint naming Carol Radin, Alvin Radin, and Radin Enterprises, LLC, as additional defendants to be timely filed and served nunc pro tunc, and, inter alia, pursuant to CPLR 3025(c) to amend a judgment of the same court (Dye, J.), dated June 29, 2000, to include those nonparties as additional defendants therein.

ORDERED that the order is affirmed, with one bill of costs.

 “Under CPLR 305(c), an amendment to correct a misnomer will be permitted ‘if the court has acquired jurisdiction over the intended but misnamed defendant ․ provided that ․ the intended but misnamed defendant was fairly apprised that [he] was the party the action was intended to affect ․ [and] would not be prejudiced’ by allowing the amendment” (Holster v. Ross, 45 A.D.3d 640, 642, 846 N.Y.S.2d 261, quoting Simpson v. Kenston Warehousing Corp., 154 A.D.2d 526, 527, 546 N.Y.S.2d 148).  “Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue” (Creative Cabinet Corp. of Am. v. Future Visions Computer Store, 140 A.D.2d 483, 484-485, 528 N.Y.S.2d 596;  see Ober v. Rye Town Hilton, 159 A.D.2d 16, 20, 557 N.Y.S.2d 937).   However, “while CPLR 305(c) may be utilized to correct the name of an existing defendant (see Benware v. Schoenborn, 198 A.D.2d 710, 711-712 [604 N.Y.S.2d 290] ), it cannot be used by a party as a device to add or substitute a party defendant (see Security Mut. Ins. Co. v. Black & Decker Corp., 255 A.D.2d 771, 773 [680 N.Y.S.2d 287] )” (Hart v. Marriott Intl., 304 A.D.2d 1057, 1059, 758 N.Y.S.2d 435).   A plaintiff may not invoke CPLR 305(c) to proceed against an entirely new defendant, who was not served, after the expiration of the statute of limitations (see Security Mut. Ins. Co. v. Black & Decker Corp., 255 A.D.2d 771, 773, 680 N.Y.S.2d 287).

 Contrary to the plaintiff's contentions, “ ‘[t]his 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’ ” (Achtziger v. Fuji Copian Corp., 299 A.D.2d 946, 947, 750 N.Y.S.2d 413, quoting Jordan v. Lehigh Constr. Group, 259 A.D.2d 962, 962, 689 N.Y.S.2d 322).   The plaintiff failed to establish that he properly served Carol Radin, Alvin Radin, and Radin Enterprises, LLC, the proposed additional defendants (see Gennosa v. Twinco Servs., 267 A.D.2d 200, 201, 699 N.Y.S.2d 459;  Feszczyszyn v. General Motors Corp., 248 A.D.2d 939, 940, 669 N.Y.S.2d 1010;  Vandermallie v. Liebeck, 225 A.D.2d 1069, 1069, 639 N.Y.S.2d 208).   Having failed to establish that the proposed additional defendants were properly served, the plaintiff was not entitled to the relief he sought pursuant to CPLR 305(c) or CPLR 3025 (see Achtziger v. Fuji Copian Corp., 299 A.D.2d at 947, 750 N.Y.S.2d 413;  Gennosa v. Twinco Servs., 267 A.D.2d at 201, 699 N.Y.S.2d 459;  Jordan v. Lehigh Constr. Group, 259 A.D.2d at 962, 689 N.Y.S.2d 322;  Security Mut. Ins. Co. v. Black & Decker Corp., 255 A.D.2d at 773, 680 N.Y.S.2d 287;  Feszczyszyn v. General Motors Corp., 248 A.D.2d at 940, 669 N.Y.S.2d 1010;  Vandermallie v. Liebeck, 225 A.D.2d at 1069, 639 N.Y.S.2d 208).

The parties' remaining contentions are without merit.