Opinion
February 22, 1994
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
We agree with the Supreme Court that the summons with notice served by the plaintiff pursuant to CPLR 305 (b), which stated that the plaintiff sought to "[r]ecover money damages for personal injuries, medical expenses and lost earnings sustained as a result of defendants' negligence on July 21, 1990 on the premises of the defendant's sailboat, 'Equinox'", sufficiently set forth the nature of the action. The plaintiff's failure to also set forth in the notice an additional theory of assault and battery arising from the same incident was not a jurisdictional defect since the verified complaint alleging the assault and battery was served within one year of the incident (see, Pilla v. La Flor De Mayo Express, 191 A.D.2d 224; Bullis v American Motors Corp., 175 A.D.2d 535). Since the record contains no evidence of prejudice to the defendants, the court acted within its discretion in allowing the plaintiff to amend her summons with notice so as to set forth the theory of assault and battery (see, CPLR 305 [c]). Moreover, the court correctly struck the defendants' fourth and fifth affirmative defenses. Bracken, J.P., Miller, Copertino, Santucci and Altman, JJ., concur.