Rivera v. New York City Dept. of Sanitation

2020 NY Slip Op 3085, 183 A.D.3d 545, 122 N.Y.S.3d 890

Opinion

Rivera v New York City Dept. of Sanitation (2020 NY Slip Op 03085)

Rivera v New York City Dept. of Sanitation

2020 NY Slip Op 03085

Decided on May 28, 2020

Appellate Division, First 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 May 28, 2020
Renwick, J.P., Richter, Manzanet-Daniels, Singh, Moulton, JJ.

11580 158933/17

[*1]Juan Rivera, Plaintiff-Appellant,

v

New York City Department of Sanitation, et al., Defendants-Respondents.

Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for appellant.

James E. Johnson, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered March 7, 2019, which granted defendant New York City Department of Sanitation's motion to dismiss the complaint and denied plaintiff's cross motion pursuant to CPLR 3025 to amend the complaint, unanimously reversed, on the facts, without costs, the motion denied and the cross motion granted.

The summons and complaint were served on Corporation Counsel for the City of New York, which answered on behalf of the City of New York. Defendant's motion to dismiss the complaint should have been denied and plaintiff's cross motion to amend the summons and complaint to correct the misnomer granted. The City was not prejudiced by the mis-description and was on notice that

plaintiff intended to seek a judgment against it (see CPLR 305[c]; 2001; Medina v City of New York , 167 AD2d 268 [1st Dept 1990]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 28, 2020

CLERK