Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Denman, P.J., Green, Balio, Wesley and Davis, JJ.
Order unanimously reversed on the law with costs, motion granted, cross motion denied and complaint reinstated. Memorandum: Supreme Court erred in denying plaintiffs' motion to amend the summons and complaint to reflect that "COUNTRY BREADS MORE, INC.," rather than "JOYCE WOHLFEIL D/B/A COUNTRY BREADS MORE" is the proper defendant. Such an amendment should be granted, even after the Statute of Limitations has run, "where (1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought" (Ober v. Rye Town Hilton, 159 A.D.2d 16, 20; see also, Air Tite Mfg. v. Acropolis Assocs., 202 A.D.2d 1067; Simpson v. Kenston Warehousing Corp., 154 A.D.2d 526, 527). In this case, "`the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue'" (Air Tite Mfg. v. Acropolis Assocs., supra, at 1067, quoting Creative Cabinet Corp. v. Future Visions Computer Store, 140 A.D.2d 483, 484-485; see also, Public Serv. Mut. Ins. Co. v. Joyce, 182 A.D.2d 535; Medina v. City of New York, 167 A.D.2d 268).