Public Service Mutual Insurance v. Joyce

182 A.D.2d 535, 582 N.Y.S.2d 1016, 1992 N.Y. App. Div. LEXIS 6210

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (David B. Saxe, J.), entered October 2, 1991, which granted plaintiff’s motion to amend the summons and complaint to name "George E. Joyce, Inc.” rather than "George E. Joyce” as the sole defendant, unanimously affirmed, with costs.

The IAS court did not abuse its discretion in granting the motion to amend the summons and complaint pursuant to CPLR 305 (c). Notwithstanding the fact that the individual named as defendant, whose corporation performed the work for plaintiff’s subrogor, had died long before the action was commenced, the corporation’s attorneys responded to the action in the individual’s name after service was made at the corporation’s place of business. The corporation was thus well aware of the action and that it was the party intended to be named. Moreover, plaintiff’s error in naming the individual as the defendant was perpetuated by the very actions taken on behalf of the corporation. Due to such misrepresentations, however unintentional, the corporation may not assert that its principal’s death rendered the original service a nullity, and that a new action is barred by the Statute of Limitations. Since no prejudice was caused to the corporation, and indeed none is alleged other than the running of the Statute of Limitations, the court correctly permitted the amendment. Concur — Sullivan, J. P., Ellerin, Wallach and Rubin, JJ.