Opinion
15530 Index No. 23864/14E Case No. 2021–02969
03-15-2022
Nicole WILLIS, Plaintiff–Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY et al., Defendants, E.E. Cruz & Company, Inc., Defendant–Respondent.
Elefterakis, Elefterakis & Panek, New York (Eileen Kaplan of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Elefterakis, Elefterakis & Panek, New York (Eileen Kaplan of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Gische, J.P., Kern, Gonza´lez, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Andrew Cohen, J.), entered July 13, 2021, which denied plaintiff's motion in accordance with CPLR 305(c) to amend the supplemental summons and amended verified complaint, unanimously affirmed, without costs.
The motion court correctly denied plaintiff's motion to amend the supplemental summons and amended complaint to replace defendant E.E. Cruz & Company, Inc., with "E.E. Cruz and Tully Construction, Co., A Joint Venture, LLC" (CTJV). Plaintiff's failure to name CTJV was not a mere misdescription or misnomer. Rather, CTJV was a separate entity that did not share the named defendant's name, address, or corporate counsel; those facts were made clear in documents produced in discovery and by the witness defendant produced for deposition. Thus, plaintiff's failure to properly serve CTJV was a nonwaivable jurisdictional defect that plaintiff could not fix by amendment under CPLR 305(c) after the statute of limitations had expired (see Nossov v. Hunter Mtn., 185 A.D.3d 948, 948–949, 128 N.Y.S.3d 532 [2d Dept. 2020] ; Cardinale v. Woolworth's Inc., 304 A.D.2d 351, 352, 758 N.Y.S.2d 296 [1st Dept. 2003] ).
Plaintiff's argument based on CPLR 311–a is similarly unavailing. Plaintiff did not serve defendant personally, and service upon defendant was not likely to inform CTJV that it was being sued since defendant and CTJV were two separate entities with separate addresses (see Matter of James v. iFinex Inc., 185 A.D.3d 22, 32, 127 N.Y.S.3d 456 [1st Dept. 2020] ). Similarly, there is no basis for a finding that defendant is estopped from challenging the proposed amendment to the pleadings, as it did nothing to hide that it was a distinct entity from CTJV (see Cardinale, 304 A.D.2d at 352–353, 758 N.Y.S.2d 296 ).