Perez v. City of New York

Appellate Division of the Supreme Court of New York

Perez v. City of New York

74 A.D.3d 638, 902 N.Y.S.2d 357

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 22, 2010

StatusPublished

This text of 74 A.D.3d 638 (Perez v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perez v. City of New York, 74 A.D.3d 638, 902 N.Y.S.2d 357 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 20, 2009, which, in an action for personal injuries against the City of New York, denied plaintiffs’ motion to restore the action to active status and for leave to amend the summons and complaint so as [639]*639to substitute the New York City Department of Education as the only defendant, unanimously affirmed, without costs.

The motion court correctly held that it was without jurisdiction to entertain the motion when the action had already been dismissed by order of this Court precisely because plaintiff sued the City instead of the Department (41 AD3d -378 [2007], lv denied 10 NY3d 708 [2008]). In any event, we reject plaintiffs present argument that the circumstances, including the naming of the Department as well the City in the notice of claim, show that the naming of only the City in the summons was a nonprejudicial misnomer that is correctable under CPLR 305 (c). Concur—Gonzalez, P.J., Andrias, Catterson. Renwick and Manzanet-Daniels, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 20, 2009, which, in an action for personal injuries against the City of New York, denied plaintiffs’ motion to restore the action to active status and for leave to amend the summons and complaint so as [639]*639to substitute the New York City Department of Education as the only defendant, unanimously affirmed, without costs.

The motion court correctly held that it was without jurisdiction to entertain the motion when the action had already been dismissed by order of this Court precisely because plaintiff sued the City instead of the Department (41 AD3d -378 [2007], lv denied 10 NY3d 708 [2008]). In any event, we reject plaintiffs present argument that the circumstances, including the naming of the Department as well the City in the notice of claim, show that the naming of only the City in the summons was a nonprejudicial misnomer that is correctable under CPLR 305 (c). Concur—Gonzalez, P.J., Andrias, Catterson. Renwick and Manzanet-Daniels, JJ.

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Bluebook (online)

74 A.D.3d 638, 902 N.Y.S.2d 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-city-of-new-york-nyappdiv-2010.