Olmsted v. Pizza Hut of America, Inc.

28 A.D.3d 855, 813 N.Y.S.2d 241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2006
• Status: Published

Opinions

Rose, J.

Appeal from an order of the Supreme Court (O’Brien, III, J.), entered August 3, 2005 in Madison County, which, inter aha, partially granted plaintiffs motion to amend the caption.

On December 13, 2002, one day before the statute of limitations was to expire, plaintiff commenced this action to recover for injuries she allegedly sustained in December 1999 when she received a severe electrical shock while working at the premises of defendant Pizza Hut of America, Inc. (hereinafter defendant). Because she could not identify the person or contractor who installed the allegedly defective electrical system, despite preaction discovery proceedings, plaintiff named them as “John Doe” defendants in her summons and complaint pursuant to CPLR 1024. Plaintiff subsequently requested and received repeated extensions of her time to identify and serve the unknown parties (see CPLR 306-b). In March 2005, plaintiff moved to amend the caption of the action by replacing “John Doe Electrical Contracting Inc.” with “Dave Hall Electric, Inc.” (hereinafter Hall), the entity allegedly involved in providing on-call maintenance of the electrical system at defendant’s premises. Over Hall’s objections, Supreme Court granted plaintiff’s motion. Hall now appeals.

Hall contends that plaintiffs complaint does not sufficiently identify the then-unknown electrical contractor as the party who maintained, rather than installed, defendant’s electrical system. We agree. Under CPLR 1024, the description of the unknown party must be sufficiently complete to fairly apprise that entity that it is the intended defendant (see Justin v Orshan, 14 AD3d 492, 493 [2005]; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482 [1992]). Although, as Supreme Court noted, the complaint preliminarily recites that plaintiffs preaction order sought to identify the contractors who installed or maintained the electrical system, its substantive paragraphs identify the unknown electrical contractor as the one who was involved in the construction of defendant’s restaurant, who had a duty to construct the premises to be reasonably safe and who contracted with the general contractor to install the restaurant’s electrical system. There are no allegations that the unknown electrical contractor negligently repaired or maintained the electrical system after its construction. Contrary to the dissent’s contention, it was not necessary for Hall’s president to address whether or not Hall had replaced an outlet in the restaurant as long as Hall did not install the electrical system. If Hall’s president had read the complaint, he would not have known that Hall was an intended defendant and, thus, the summons and complaint were jurisdictionally insufficient (see Lebowitz v Fieldston Travel Bur., supra at 482).

In view of the foregoing, we need not address Hall’s remaining arguments.

Crew III, J.R and Mugglin, J., concur.