Opinion
2018–14886 Index No. 504324/16
07-22-2020
Boris NOSSOV, Respondent, v. HUNTER MOUNTAIN, et al., Defendants; Hunter Mountain Ski Bowl, Inc., Nonparty-Appellant.
Roemer Wallens Gold & Mineaux LLP, Albany, N.Y. (Matthew J. Kelly of counsel), for nonparty-appellant. Sean H. Rooney, Brooklyn, NY, for respondent.
Roemer Wallens Gold & Mineaux LLP, Albany, N.Y. (Matthew J. Kelly of counsel), for nonparty-appellant.
Sean H. Rooney, Brooklyn, NY, for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, proposed additional defendant Hunter Mountain Ski Bowl, Inc., appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated December 6, 2018. The order granted that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 305(c) and 3025(b) for leave to amend the summons, complaint, and caption to name Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain, as a defendant instead of the named defendant Hunter Mountain.
ORDERED that the order is reversed, on the law, with costs, and that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 305(c) and 3025(b) for leave to amend the summons, complaint, and caption to name Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain, as a defendant instead of the named defendant Hunter Mountain is denied.
On March 27, 2014, the plaintiff allegedly was injured while boarding a ski lift at Hunter Mountain in Hunter. On March 23, 2016, the plaintiff commenced this action against the defendants, Hunter Mountain and Hunter Mountain Resort, LLC, to recover damages for personal injuries. After the defendants failed to appear or answer the complaint, a default judgment dated April 18, 2018, was entered against the defendants. By notice of motion dated September 15, 2018, the plaintiff moved, inter alia, in effect, pursuant to CPLR 305(c) and 3025(b) for leave to amend the summons, complaint, and caption to name Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain (hereinafter HMSB), as a defendant instead of the named defendant Hunter Mountain. The Supreme Court granted that branch of the motion. HMSB appeals.
The plaintiff was not entitled to relief pursuant to CPLR 305(c) for leave to amend the summons, complaint, and caption to name HMSB as a defendant instead of Hunter Mountain. Relief pursuant to CPLR 305(c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed in the original process, and the correct defendant would not be prejudiced by the granting of the amendment (see Fridman v. New York City Tr. Auth., 131 A.D.3d 1202, 1204, 17 N.Y.S.3d 467 ; Associated Geriatric Info. Network, Inc. v. Split Rock Multi–Care Ctr., LLC, 111 A.D.3d 861, 861–862, 976 N.Y.S.2d 149 ; Smith v. Garo Enters., Inc., 60 A.D.3d 751, 752, 875 N.Y.S.2d 167 ). While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served (see Tokhmakhova v. H.S. Bros. II Corp., 132 A.D.3d 662, 18 N.Y.S.3d 85 ; Sanders v. 230FA, LLC, 126 A.D.3d 876, 877, 2 N.Y.S.3d 908 ; Smith v. Garo Enters., Inc., 60 A.D.3d at 752, 875 N.Y.S.2d 167 ).
Here, it is undisputed that the motion was made after the expiration of the three-year statute of limitations (see CPLR 214[5] ). There is no evidence that HMSB and Hunter Mountain are one and the same entity (see Rinzler v. Jafco Assoc., 21 A.D.3d 360, 362, 800 N.Y.S.2d 719 ; Pugliese v. Paneorama Italian Bakery Corp., 243 A.D.2d 548, 549, 664 N.Y.S.2d 602 ). Furthermore, the plaintiff failed to establish that he properly served HMSB or that the Supreme Court obtained jurisdiction over it (see New Found. LLC v. Ademi, 140 A.D.3d 1038, 1039, 35 N.Y.S.3d 362 ; Tokhmakhova v. H.S. Bros. II Corp., 132 A.D.3d at 663, 18 N.Y.S.3d 85 ; Smith v. Giuffre Hyundai, Ltd., 60 A.D.3d 1040, 1042, 876 N.Y.S.2d 450 ).
Moreover, the plaintiff was not entitled to relief pursuant to CPLR 3025(b) for leave to amend the summons, complaint, and caption to add HMSB as a defendant, since he did not provide a copy of his proposed amended summons and complaint, and the proposed amendments were palpably insufficient or patently devoid of merit (see Drice v. Queens County Dist. Attorney, 136 A.D.3d 665, 666, 23 N.Y.S.3d 896 ; Codrington v. Wendell Terrace Owners Corp., 118 A.D.3d 844, 845–846, 988 N.Y.S.2d 237 ; Kilkenny v. Law Off. of Cushner & Garvey, LLP, 76 A.D.3d 512, 513, 905 N.Y.S.2d 661 ). The proposed amendments are patently devoid of merit because the statute of limitations bars any claim against HMSB, a new party to this action (see Garcia v. New York–Presbyt. Hosp., 114 A.D.3d 615, 981 N.Y.S.2d 84 ; Reuter v. Haag, 224 A.D.2d 603, 604, 638 N.Y.S.2d 673 ), and the plaintiff failed to establish that the relation-back doctrine pursuant to CPLR 203(f) applied (see Buran v. Coupal, 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 661 N.E.2d 978 ).
Accordingly, we disagree with the Supreme Court's determination granting that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 305(c) and 3025(b) for leave to amend the summons, complaint, and caption to name HMSB as a defendant instead of Hunter Mountain.
CHAMBERS, J.P., ROMAN, COHEN and CHRISTOPHER, JJ., concur.