SMITH v. GIUFFRE HYUNDAI LTD

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Supreme Court, Appellate Division, Second Department, New York.

Laura SMITH, appellant, v. GIUFFRE HYUNDAI, LTD., respondent.

Decided: March 31, 2009

STEVEN W. FISHER, J.P., ANITA R. FLORIO, EDWARD D. CARNI, and CHERYL E. CHAMBERS, JJ. Mirman Markovits & Landau, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellant. McCabe & Mack, LLP, Poughkeepsie, N.Y. (Ian C. Lindars of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered December 11, 2007, which granted the defendant's motion for summary judgment dismissing the complaint and denied her cross motion for leave to amend the caption of the summons and complaint to reflect the name of the defendant as “Giuffre Hyundai of White Plains, Ltd.”

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action alleging that she was injured in a trip and fall accident at a Hyundai car dealership in White Plains.   It is undisputed that the dealership was owned by “Giuffre Hyundai of White Plains, Ltd.” (hereinafter Giuffre White Plains).   The summons and complaint, however, named the defendant “Giuffre Hyundai Ltd.,” an entity which owns and operates a Hyundai dealership in Brooklyn (hereinafter Giuffre Brooklyn).   The two corporations had the same president and general manager, but their ownership was different, and Giuffre White Plains ceased business operations before the plaintiff commenced this action.   The plaintiff effected service on the Secretary of State, the agent designated for service by both “Giuffre” corporations, and also by personally delivering process to an address in Brooklyn that was listed by both corporations as the forwarding address for service made upon the Secretary of State.

Giuffre Brooklyn subsequently moved for summary judgment dismissing the complaint on the ground that it did not own or operate the premises where the accident took place.   The plaintiff cross-moved for leave to amend the caption to reflect the appropriate corporate defendant, Giuffre White Plains, arguing that the proper entity had been served, and that the error was merely an inadvertent misnomer in the caption.   The Supreme Court granted the defendant's motion for summary judgment and denied the cross motion.   We affirm.

“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 [it] 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;  see Perrin v. McKenzie, 266 A.D.2d 269, 270, 698 N.Y.S.2d 41;  Pugliese v. Paneorama Italian Bakery, 243 A.D.2d 548, 664 N.Y.S.2d 602;  Ober v. Rye Town Hilton, 159 A.D.2d 16, 557 N.Y.S.2d 937;  Creative Cabinet Corp. of AM. v. Future Visions Computer Store, 140 A.D.2d 483, 528 N.Y.S.2d 596).

 Here, because the plaintiff never established that she obtained jurisdiction over Giuffre White Plains, her cross motion was properly denied.   First, by serving on the Secretary of State a summons and complaint naming Giuffre Brooklyn as the defendant, the plaintiff did not thereby also obtain jurisdiction over the entirely separate corporate entity of Giuffre White Plains, despite their having the same forwarding address.   Upon receipt of the summons by the Secretary of State, service was complete and jurisdiction was obtained only over the named party (see Associated Imports v. Amiel Publ., 168 A.D.2d 354, 562 N.Y.S.2d 678;  Micarelli v. Regal Apparel, 52 A.D.2d 524, 381 N.Y.S.2d 511;  see generally Siegel N.Y. Prac. § 70, at 110 [3d ed.] ).   Moreover, the Secretary of State's forwarding of process properly served on it for Giuffre Brooklyn did not thereby confer jurisdiction over Giuffre White Plains (see generally CPLR 311[a][1] ).   Further, there is no evidence in the record that the process delivered personally to the Brooklyn address was delivered to a person authorized to accept service of process for Giuffre White Plains (see CPLR 311[a][1];  Rinzler v. Jafco Assoc., 21 A.D.3d 360, 362, 800 N.Y.S.2d 719;  Feszczyszyn v. General Motors Corp., 248 A.D.2d 939, 940-941, 669 N.Y.S.2d 1010;  Pugliese v. Paneorama Italian Bakery Corp., 243 A.D.2d 548, 549, 664 N.Y.S.2d 602;  cf. Balderman v. Capital City/Am. Broadcasting Co., 233 A.D.2d 861, 862, 649 N.Y.S.2d 284).   In the absence of jurisdiction over Giuffre White Plains, the Supreme Court properly denied the plaintiff's cross motion for leave to amend the caption.

 As the named defendant, Giuffre Brooklyn, established prima facie that it did not own, operate, control, or manage the premises where the plaintiff allegedly was injured, and the plaintiff failed to raise a triable issue of fact in opposition, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

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