Opinion
17329 Index No. 111794/99 Case No. 2022–00567
02-14-2023
James JONKE, Plaintiff–Appellant, v. FOOT LOCKER, INC., Defendant–Respondent.
Bernadette Panzella, P.C., New York (Bernadette Panzella of counsel), for appellant. Kelley Drye & Warren LLP, New York (David I. Zalman of counsel), for respondent.
Bernadette Panzella, P.C., New York (Bernadette Panzella of counsel), for appellant.
Kelley Drye & Warren LLP, New York (David I. Zalman of counsel), for respondent.
Acosta, P.J., Webber, Friedman, Kennedy, Higgitt, JJ.
Order, Supreme Court, New York County (Arthur F. Engoran, J.), entered on or about January 20, 2022, which granted defendant Foot Locker, Inc.'s motion to reargue, and upon reargument, denied plaintiff's motion to amend the pleadings, unanimously affirmed, without costs.
Plaintiff relies on informal judicial admissions to bind Foot Locker, Inc. (Foot Locker) as the successor in interest to the default judgment obtained against "The Foot Locker Inc.," which later changed its name to "The Boot Locker Inc." Nothing in the record suggests that Foot Locker acquired the assets of or merged with "The Foot Locker Inc." In fact, Foot Locker denies any connection to, purchase of, involvement or merger with the Boot Locker, and plaintiff points to nothing in the record to suggest otherwise. Without any evidence to show that Foot Locker acquired "The Foot Locker Inc." or Boot Locker in some fashion, Foot Locker cannot be considered "The Foot Locker Inc.'s" successor in interest (see Highland Crusader Offshore Partners, L.P. v. Celtic Pharma Phinco B.V., 205 A.D.3d 520, 522–523, 169 N.Y.S.3d 256 [1st Dept. 2022] ). The informal judicial admissions are insufficient to overcome this legal requirement.
Contrary to plaintiff's assertions, Supreme Court could properly address the merits on reargument. The order that prompted Foot Locker to move to reargue had resolved plaintiff's motion from 2009, seeking to amend the caption, and Foot Locker's order to show cause from 2016, seeking, among other things, summary judgment. Supreme Court's order dated March 18, 2019 did not resolve Foot Locker's order to show cause. Nor did this Court on appeal (see Jonke v. Foot Locker Inc., 181 A.D.3d 544, 119 N.Y.S.3d 741 [1st Dept. 2020] ).
Plaintiff's motion to amend the caption was properly denied since this is not a case involving a simple misnomer. Venator Group, Inc. did not change its name to Foot Locker until 2001—two years after plaintiff initiated the action against Venator's subsidiaries. Plaintiff did not include Venator as a defendant or serve it. Plaintiff served "The Foot Locker Inc." and Boot Locker through the Secretary of State at their registered address, to which Foot Locker had no connection (see Fink v. Regent Hotels, 234 A.D.2d 39, 41, 650 N.Y.S.2d 216 [1st Dept. 1996] ).