Smith v. Hennesey

266 A.D.2d 692, 698 N.Y.S.2d 346, 1999 N.Y. App. Div. LEXIS 11406

Opinion

—Graffeo, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered July 22, 1998 in Schenectady County, which denied defendant’s motion to dismiss the complaint.

Several days before the expiration of the Statute of Limitations, plaintiff Gail Smith and her husband, derivatively, commenced this action to recover damages arising out of Smith’s slip and fall at her employer’s premises. The complaint alleges that defendant was responsible for cleaning the floors at the premises and was negligent in doing so. Following joinder of issue, defendant moved to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint based upon the claim that plaintiffs sued the wrong party. Supreme Court denied the motion, resulting in this appeal.

In support of her motion, defendant submitted an affidavit in which she alleged that she has never done business under the assumed name stated in the complaint.

* Absent from her affidavit, however, is any allegation that she was not responsible for cleaning the premises where Smith fell, and Smith’s affidavit alleged that she had seen defendant enter the premises with other members of the cleaning crew.

In an attorney’s reply affidavit, defendant claimed that the proper defendant was a corporation, but Supreme Court did not consider the affidavit, apparently because it was not properly filed (see, 22 NYCRR 202.5 [b]). In any event, the attorney’s affidavit is not accompanied by any documentary evidence or affidavit of a corporate officer to establish that the corporation was the party responsible for providing cleaning services at the premises where Smith was injured or that the corporation was the entity which did business under the assumed name listed in the complaint. Defendant failed to submit sufficient evidence to establish its entitlement to the relief it seeks and, therefore, Supreme Court’s order denying defendant’s motion is affirmed.

Crew III, J. P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed, with costs.

Plaintiff mistakenly transposed the last two words in the assumed name and Supreme Court properly disregarded the mistake (see, CPLR 2001).