Hildebrand v Nowak Allied Contrs., Inc.

[*1] Hildebrand v Nowak Allied Contrs., Inc. 2009 NY Slip Op 51376(U) [24 Misc 3d 132(A)] Decided on June 29, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ
2008-1267 S C.

Bernard Hildebrand, Respondent,

against

Nowak Allied Contractors, Inc. Appellant.

Appeal from an order of the District Court of Suffolk County, Sixth District (Howard M. Bergson, J.), dated May 14, 2008. The order granted plaintiff's motion to amend the caption of the judgment to reflect the name of the defendant as "Nowak Allied Contractors, Inc." and denied defendant's cross motion to vacate the judgment and set the matter down for a hearing.

Order modified by providing that plaintiff's motion to amend the caption of the judgment to reflect the name of the defendant as "Nowak Allied Contractors, Inc." is denied; as so modified, affirmed without costs.

On November 13, 2007, plaintiff commenced this small claims action against defendant Richard Nowak Construction Co., Inc. (Construction) to recover the sum of $3,333.33 in attorney's fees, and defendant counterclaimed to recover the sum of $1,140, the amount which it allegedly overpaid plaintiff for attorney's fees. After an arbitration hearing, the arbitrator awarded plaintiff the principal sum of $3,333.33 and dismissed the counterclaim. Judgment was entered against Construction for said amount on January 25, 2008.

Thereafter, plaintiff moved to amend the judgment to name Nowak Allied Contractors, Inc. (Allied) as the judgment debtor instead of Construction. Defendant cross-moved to vacate the judgment and set the matter down for a hearing. In his motion papers, plaintiff stated that defendant had changed its name to Allied but the business address, phone number and license holder were still the same. In an affidavit in support of defendant's cross motion and in opposition to plaintiff's motion, Richard Nowak stated that Construction and Allied were separate corporations. Construction was incorporated in 1976 and Allied was incorporated in 1982. Mr. Nowak further stated that plaintiff contracted with Construction, not Allied.

After reviewing the record, we find that the District Court improperly granted plaintiff's motion to amend the judgment to name Allied as the judgment debtor instead of Construction. [*2]The record establishes that Construction and Allied were completely separate entities. Furthermore, both parties agree that plaintiff entered into a contract and dealt with Construction only. Thus, this is not a case where a plaintiff, who did not know the true name of the defendant at the time of the commencement of the small claims action, may seek to amend the caption to reflect the true name (see UDCA 1814; Bennett v Class N' Style Travel & Limousine Ltd., 23 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2009]).

We note that if Construction fraudulently conveyed its assets to Allied, plaintiff's remedy is to commence a separate action based on said fraudulent conveyance (see Debtor and Creditor Law § 273-a; Parent v Amity Autoworld, Ltd., 15 Misc 3d 633 [2007]).

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Tanenbaum, J.P., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009