Yellow Book USA, Inc. v Superior Limousine, Inc.

[*1] Yellow Book USA, Inc. v Superior Limousine, Inc. 2005 NY Slip Op 50823(U) Decided on May 17, 2005 Supreme Court, Cortland County Rumsey, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2005
Supreme Court, Cortland County

Yellow Book USA, Inc., Plaintiff,

against

Superior Limousine, Inc., Defendant.



38170



Kazlow & Kazlow

By:Gene R. Kazlow, Esq.

Attorneys for Plaintiff

19 West 34th Street, Suite 905

New York, New York 10012

Mr. Joseph Fezza

Defendant Pro Se

991 Tompkins Street

Cortland, New York 13045

Superior Limousine, Inc.

Defendant Pro Se

991 Tompkins Street

Cortland, New York 13045

Phillip R. Rumsey, J.

This action, to recover amounts due and unpaid for advertising services, was commenced by filing, followed by service of the summons and complaint upon defendant Superior Limousine, Inc., in October 2003. Defendant failed to appear or answer, and a default judgment, in the amount of $10,883.84, was entered against Superior Limousine, Inc. on February 13, 2004.

It was apparently later discovered by plaintiff that the original contracts for the services in question, and related credit application, had been entered into by Joseph Fezza, "d/b/a Superior Limousine," in October 1999, with Superior Limousine, Inc. formed by Fezza thereafter. Plaintiff now seeks to amend the Summons and Complaint to add Fezza, in his individual capacity and "d/b/a Superior Limousine," as a party defendant. The motion was made on notice to Fezza, who did not appear or tender any papers in opposition.

In the court's view, the mistake that plaintiff now seeks to correct cannot be characterized as a mere "misnaming" of a defendant, under circumstances where the party to be added or substituted would necessarily have known, from the outset, that it was the intended target of plaintiff's claims, such that no prejudice could accrue from a mere "correction" of the misnomer (compare, Fink v Regent Hotel, Ltd., 234 AD2d 39, 41 [1996]; Career Directions v F & K Supply, 215 AD2d 806, lv dismissed 86 NY2d 778 [1995]). Where, as here, an action is brought naming an existing corporation (even one that may have been formed after some of the subject transactions occurred) as a party defendant, there is no reason why an individual, who happens to be a principal of that corporation (and who likely formed it with the precise intention of avoiding personal liability for business transactions), would know or expect that he or she may be held personally liable for the events at issue (cf., Connell v Hayden, 83 AD2d 30, 37 [1981]).

There appearing to be no issue of expiration of the relevant statute of limitations (such that it would be necessary to ascertain whether the proposed defendant is "united in interest" with the corporation previously named, to determine whether the claims to be interposed against the former would "relate back" to the initial commencement of the action, pursuant to CPLR 203 [f] [see, e.g., Connell, at 39]),[FN1] the court finds no reason to deny plaintiff the opportunity to file, and serve upon the new defendant, Joseph Fezza, a supplemental summons (CPLR 305 [a]) and an amended complaint (see, Connell, at 36-37), adding the four proposed causes of action against that defendant (Affirmation of Robert H. Silverstadt, Esq., dated January 25, 2005, Exhibit 4 [Proposed Amended Complaint]). To this extent, the motion is granted. Fezza will then have the usual opportunity to answer that complaint, and interpose any defense he may have to the allegations made therein (see, Cruz v Vinicio, 259 AD2d 294 [1999]).

In addition to asserting four causes of action against Fezza, the proposed amended complaint also eliminates the original three claims against Superior Limousine, Inc., and replaces [*2]them with a single claim, based on the corporation's status as "successor in interest" to Fezza's "d/b/a" of Superior Limousine. Having already pursued its claims against Superior Limousine, Inc. to final judgment, however, plaintiff cannot now amend those claims to change the underlying factual allegations or theories of recovery upon which they were based, essentially transforming its judgment into one upon a wholly different claim, against which defendant had no opportunity to defend. While a pleading may be amended to conform to the evidence at any time, even after judgment (CPLR 3025 [c]), plaintiff has not shown that there was any evidence introduced before the court, or the clerk, prior to issuance of the judgment, to which the proposed new "fifth" cause of action would now "conform". This aspect of the motion is therefore denied.This decision shall constitute the order of the court.

Dated: May 17, 2005

Cortland, New York

____________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

The following papers were filed with the Clerk of the County of Cortland:

-Notice of Motion dated January 25, 2005; Affirmation of Robert H. Silverstadt, Esq. dated January 25, 2005 with attached Exhibits 1-4; Affidavit of Service of Michael S. Crawford sworn to February 7, 2005;

-Original Decision and Order dated May 17, 2005. Footnotes

Footnote 1: The defendant to be added (Fezza), though placed on notice of this motion, has not raised a limitations defense. In any event, the subject transactions apparently occurred in and after October 1999, and the complaint states causes of action sounding in breach of contract (express and implied), and account stated, for which the applicable limitations period is six years.