Opinion
2005-1784 KC.
Decided October 2, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 7, 2005. The order denied a motion by defendant "Shoprite Supermarkets" for summary judgment dismissing the action against it.
Order reversed without costs and motion for summary judgment dismissing the action against defendant "Shoprite Supermarkets" granted.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
Plaintiffs commenced this action by service of a summons and complaint in which "Shoprite Supermarkets" was named as a defendant. The summons and complaint were served upon a Shoprite supermarket located at 1080 McDonald Avenue, Brooklyn, New York. Plaintiffs alleged in the complaint that Angela Garcia purchased a jar of salsa from Shoprite Supermarkets on November 16, 1997 and, on November 18, 1997, she ingested the salsa, which was infested with large insect parts. The Shoprite supermarket located at the Brooklyn address appeared in the action. Thereafter, it moved for summary judgment dismissing the action against it on the ground that plaintiffs sued the wrong party.
It was alleged in the supporting papers and conceded by plaintiffs that the salsa was purchased at a store located in Chester, New York. It was further alleged that the Shoprite supermarket located in Brooklyn was owned by Pearl River Associates, Inc., which is a cooperative and an individually owned franchise and which did not own any Shoprite stores in Chester, New York. In opposition to the motion, plaintiffs conceded that they were not suing the Shoprite supermarket located at the Brooklyn address, which appeared in the action. They argue that they are suing the franchisor under the trade name "Shoprite Supermarkets" and that service upon the franchisee was valid service upon the franchisor. The court below denied the motion on the ground that plaintiffs raised a question of fact as to whether they sued the correct party.
A trade name has no separate jural existence and can neither sue nor be sued independently of its owner ( Provosty v. Lydia E. Hall Hosp., 91 AD2d 658, 659, affd 59 NY2d 812). Plaintiffs state that the Shoprite supermarket located in Brooklyn is not a party to this action and that the named party, "Shoprite Supermarkets," was a trade name for the franchisor. Plaintiffs have neither named the owner of the trade name nor moved to amend the complaint to reflect a proper party in interest.
Generally, amendments to the pleadings are permitted where the correct party has been served with process but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that plaintiff was in fact seeking to sue ( see Creative Cabinet Corp. of Am. v. Future Visions Computer Store, 140 AD2d 483). Plaintiffs have not alleged that the name of the correct party to the action is a misnomer, and they did not seek to amend the complaint.
Accordingly, the motion for summary judgment should have been granted and the action dismissed as against "Shoprite Supermarkets."
Pesce, P.J., Weston Patterson and Belen, JJ., concur.