Fraser v. 134 Quincy St., LLC

2025 NY Slip Op 04234

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 2025
• Docket: Index No. 526666/19
• Status: Published

Opinion

Fraser v 134 Quincy St., LLC (2025 NY Slip Op 04234)

Fraser v 134 Quincy St., LLC

2025 NY Slip Op 04234

Decided on July 23, 2025

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 23, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ROBERT J. MILLER, J.P.
WILLIAM G. FORD
CARL J. LANDICINO
LAURENCE L. LOVE, JJ.

2023-02024
(Index No. 526666/19)

[*1]Dale Fraser, appellant,

v

134 Quincy Street, LLC, et al., defendants, L & C Associates, LLC, respondent.

Alter & Barbaro, Brooklyn, NY (Bernard M. Alter and Nichole Bishop Castillo of counsel), for appellant.

Black Marjieh & Sanford LLP, Elmsford, NY (Steven R. Lau of counsel), for respondent.

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, _____ AD3d _____ [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 AD3d 643, 645; Henriquez v Inserra Supermarkets, Inc., 68 AD3d 927, 928). 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 AD3d 602, 603).

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

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

ENTER:

Darrell M. Joseph

Clerk of the Court