Manocchio v. Wohlfeil

206 A.D.2d 908, 614 N.Y.S.2d 837

Opinion

Order unanimously reversed on the law with costs, motion granted, cross motion denied and complaint reinstated. Memorandum: Supreme Court erred in denying plaintiffs’ motion to amend the summons and complaint to reflect that "country breads & more, inc.,” rather than "joyce wohlfeil d/b/a country breads & more” is the proper defendant. Such an amendment should be granted, even after the Statute of Limitations has run, "where (1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought” (Ober v Rye Town Hilton, 159 AD2d 16, 20; see also, Air Tite Mfg. v Acropolis Assocs., 202 AD2d 1067; Simpson v Kenston Warehousing Corp., 154 AD2d 526, 527). In this case, " 'the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue’ ” (Air Tite Mfg. v Acropolis Assocs., supra, at 1067, quoting Creative Cabinet Corp. v Future Visions Computer Store, 140 AD2d 483, 484-485; see also, Public Serv. Mut. Ins. Co. v Joyce, 182 AD2d 535; Medina v City of New York, 167 AD2d 268). (Appeal from Order of Supreme Court, Erie County, Joslin, J.—Summary Judgment.) Present—Denman, P. J., Green, Balio, Wesley and Davis, JJ.