Opinion
2003-769 K C.
Decided February 25, 2004.
Appeal by defendants from so much of an order of the Civil Court, Kings County (A. Schack, J.), entered December 10, 2002, as granted plaintiff's cross motion to serve an amended summons and complaint upon an allegedly related entity pursuant to CPLR 203 (b).
Order unanimously affirmed without costs.
PRESENT: PESCE, PJ., GOLIA and RIOS, JJ.
Plaintiff commenced this intentional tort and personal injury action on or about June 13, 2000, alleging in his verified complaint that on April 23, 1999, defendants' employees had negligently and/or intentionally assaulted, battered and falsely arrested him on defendants' premises, a Mobil gas station, alleged to be located at 140-52 Sixth Avenue, New York, New York. Plaintiff named as defendants "HARRY SINGH d/b/a PUNJAB MOBILE and G.A.S.S. % L.K.F. PARTNERS, LTD."
In a verified answer, defendants appeared as "140 6th AVE., INC. i/s/h/a [incorrectly sued herein as] HARRY SINGH d/b/a PUNJAB MOBILE, G.A.S.S. i/s/h/a G.A.S.S. % L.K.F. PARTNERS, LTD., and L.K.F. PARTNERS, LTD. i/s/h/a G.A.S.S. % L.K.F. PARTNERS, LTD." The defense continued under this name until November 6, 2002, after the three-year negligence statute of limitations had run, at which time "HARRY SINGH d/b/a PUNJAB MOBILE and G.A.S.S. % L.K.F. PARTNERS, LTD.," suddenly dropping "140 6th Ave., Inc." from its papers, moved for summary judgment dismissing the complaint on the grounds that they did not own, manage, maintain or control the subject premises. Plaintiff cross-moved to add 140 6th Avenue, Inc. as a defendant pursuant to CPLR 203 (b). The court below granted both motions and ordered the caption amended to reflect 140 6th Avenue, Inc. as a defendant. The court correctly granted the cross motion. It should be noted that 140 6th Avenue, Inc. had appeared at the very beginning of this action by submitting a verified answer in its own name, designating itself as incorrectly sued in the name of the entities named in the caption, and subsequently participating in the full course of litigation, through the notice of appeal itself. It was therefore already a party by operation of its informal appearance and continued participation in the action ( see generally Tarallo v. Gottesman, 204 AD2d 303; Gross v. BFH Co., 151 AD2d 452; Rubino v. City of New York, 145 AD2d 285). The court's order reflected this reality in its result.