Duffy v Consolidated Edison of NY, Inc.

[*1] Duffy v Consolidated Edison of NY, Inc. 2008 NY Slip Op 52635(U) [22 Misc 3d 1114(A)] Decided on December 4, 2008 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2008
Supreme Court, New York County

Celine Duffy, Plaintiff,

against

Consolidated Edison of New York, Inc., VERIZON NEW YORK, INC. and FELIX INDUSTRIES, INC., Defendants.



CELINE DUFFY, Plaintiff,

against

THE CITY OF NEW YORK, Defendant.



108010/07



Appearances of counsel are as follows:

Counsel for plaintiff:Allen D. Springer, PLLC

50 Court Street, Suite 706

Bklyn, NY 11201

Counsel for defendant Verizon: Conway, Farrell, Curtin & Kelly, PC

48 Wall Street, 20th Floor

NY, NY 10005

Counsel for defendant Felix Assoc, LLC: Ahmuty Demers & McManus, Esqs

200 I.U. Willets Rd

Albertson, NY 11507

Counsel for defendant City of NY: Corporation Counsel

100 Church Street, 4th Floor

NY, NY 10007

Doris Ling-Cohan, J.

In this personal injury matter, plaintiff moves for an order to consolidate the first and second of the above actions and to amend the caption thereof, while one of the defendants cross-moves for an order to dismiss the plaintiff's complaint as well as the other defendants' cross claims against it (motion sequence number 002). For the following reasons, plaintiff's motion is granted, and defendant's cross motion is denied.

BACKGROUND

On July 18, 2004, plaintiff Celine Duffy (Duffy) was injured when she fell in a crosswalk located at the intersection of West 75th Street and Amsterdam Avenue in the County, City and State of New York. See Notice of Motion, Springer Affirmation, ¶ 3. Duffy suffered a fractured right wrist and related injuries. Id. Duffy alleges that her fall was caused by the improper placement of a metal plate on the roadbed as a temporary cover for construction work. Id.

Prior Proceedings

Duffy filed a Notice of Claim with the defendant City of New York (the City) on October 14, 2004, and subsequently commenced an action in this court against the City on April 26, 2005 under Index Number 105712/05 (the first action).Id., ¶¶ 4-5; Exhibits B, C, D. Thereafter, on June 7, 2007, Duffy commenced a second action in this court against defendants Consolidated Edison of New York, Inc. (Con Ed), Verizon New York, Inc. (Verizon) and Felix Industries, Inc. (Felix) under Index Number 108010/07. Id., ¶ 6; Exhibit E. The complaints in both actions each set forth a single cause of action for negligence. All defendants served timely answers that included cross claims against each other, and discovery was commenced. Id.; Exhibits F, G.

During the discovery process, defendant Con Ed commenced a third-party action against defendant Felix on February 19, 2008 under Index Number 590066/08 (the third-party action). Id., ¶ 11; Exhibit J. Con Ed's complaint names defendant Felix by what is evidently its correct name, "Felix Associates, LLC," rather than as "Felix Industries, Inc.," as Duffy had done in the complaint that she filed in the second action. Duffy alleges, however, that her process server had timely discovered the error and had made a handwritten correction to Felix's name on a second copy of the summons and complaint that he served on Felix on the same day. Id., ¶ 10. Duffy has submitted a copy of the process server's affidavit of service to support this allegation. Id.; Exhibit I. Duffy further reiterates that Felix did interpose a timely answer to her complaint in the second action. Id., ¶ 11; Exhibit F.

Duffy now moves to consolidate the first and second actions, and to amend the caption to [*2]reflect Felix's correct name.[FN1] Felix, however, cross-moves to dismiss Duffy's complaint and the other defendants' cross claims against it on the ground of lack of personal jurisdiction. Felix argues that dismissal is warranted because it was improperly named and therefore improperly served. Con Ed indicates that it does not object to Duffy's motion, while neither the City, nor Verizon, has filed any opposition papers thereto. None of the defendants have responded to Felix's cross motion.

DISCUSSION

Plaintiff's Motion

The first branch of Duffy's motion seeks an order, pursuant to CPLR 602 (a), to consolidate the first and second actions herein. CPLR 602(a) provides that: [w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, ... may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

CPLR 602 (a). Duffy argues that, "the plaintiff being the same in both actions and the suits having been brought over the same transaction (accident) it is proper that consolidation should occur." See Notice of Motion, Springer Affirmation, ¶ 9. After reviewing the complaints in all three of the actions herein, it appears that they involve "common questions of law or fact," as specified in CPLR 602 (a). The court also notes that Felix's moving papers do not include any argument against this portion of Duffy's motion, and that the other defendants have either not objected to it (Con Ed), or not responded to it at all (the City, Verizon). Thus, it is a proper exercise of this court's discretion to order the consolidation of the first and second actions herein in the interests of expedient judicial review and the avoidance of unnecessary or duplicative costs and delays. Accordingly, the court grants the portion of Duffy's motion that seeks a consolidation order pursuant to CPLR 602 (a).

The second branch of Duffy's motion seeks leave, pursuant to CPLR 3025 (b), to amend the caption of this now-consolidated action to reflect the correct name of defendant Felix Associates, LLC. That statute provides that: A party may amend his pleading ... at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.

CPLR 3025 (b). Both parties admit that Duffy's original complaint in the second action incorrectly named Felix as "Felix Industries, Inc.," rather than as "Felix Associates, LLC." However, as previously observed, Duffy states that her process server had timely discovered the error and made a handwritten correction to Felix's name on a second copy of the summons and complaint, which he served on Felix, the same day. See Notice of Motion, Springer Affirmation, ¶ 10. The court notes that the copy of Duffy's process server's affidavit of service submitted herewith appears to support this allegation, as does the copy of the second action complaint - that contains a handwritten correction - that Felix submitted with its opposition papers. Id.; Exhibit I; [*3]Notice of Cross Motion, Exhibit B. Although it admits having received a copy of the complaint that bore the handwritten correction, Felix avers that the only copy of the complaint in the County Clerk's file does not contain the handwritten correction. See Notice of Cross Motion, Eschmann Affirmation, ¶¶ 4-6; Exhibit A. Felix further avers that the second copy of the complaint was not filed with the court and should, therefore, not constitute evidence, and that a further affidavit from the process server is required to explain this inconsistency. Id., ¶¶ 4-6, 20. Thus, Felix argues that Duffy has failed to adequately support her motion, and cites the holding of the Appellate Division, Second Department, in Mohan v Hollander (303 AD2d 473 [2d Dept 2003]) to support the argument that "in situations where the plaintiff fails to submit in support of the motion to amend ... denial of leave to amend is appropriate." See Notice of Cross Motion, Eschmann Affirmation, ¶ 20. Felix does admit, however, that it passed both copies of the second action summonses and complaints to its insurance carrier who retained counsel and appeared in both the second action and the third-party action. Id., ¶ 7. Duffy replies that Felix "accepted service, obtained counsel, interposed an answer and has fully participated in this action without comment regarding being misnamed until this cross motion," which, she notes, was submitted after the expiration of the statute of limitations. See Springer Affirmation in Opposition, ¶¶ 5-6. Duffy argues that, pursuant to controlling case law, she should be granted leave to amend. Id., ¶ 7. The court is persuaded by Duffy's argument.

In Fink v Regent Intl. Hotels, Ltd. (234 AD2d 39 [1st Dept 1996]), the Appellate Division, First Department, made it clear that: [a]mendment to correct a misnomer in the caption is permitted so long as certain conditions are satisfied. As this court explained in Medina v City of New York:

"The court may at any time, in its discretion and upon such terms as may be just, allow any summons to be amended if a substantial right of a party against whom the summons is issued is not prejudiced. Such amendment of a summons is justified where there is some apparent misdescription or misnomer on the process actually served which would justify the conclusions that the plaintiff issued the process against the correct party, but under a misnomer, and that the process fairly apprised the entity that plaintiff intended to seek a judgment against it." It is well settled that an application to amend the caption to reflect the true name of the defendant should be granted where, as here, the designated entity was the intended subject of the law suit, knew or should have known of the existence of the litigation against it, and will not be prejudiced thereby.

234 AD2d at 41 [internal citations omitted]. Here, as in Fink, the copies of the second, hand-corrected complaint and the process server's affidavit compel the conclusion that Duffy realized that she had misnamed Felix, but still made efforts to ensure that Felix would be apprised of the litigation being commenced against it. Felix's subsequent actions (i.e., retaining counsel, appearing and serving an answer) similarly bear out such conclusion and demonstrates that Felix suffered no prejudice by being misnamed. Felix's argument that Duffy failed to submit evidence in support of her motion is incorrect. Duffy submitted the hand-corrected copy of the complaint and the process server's affidavit of service. Felix offers no legal support for its contentions that these documents constitute insufficient evidence because the hand-corrected complaint should [*4]have been filed with the court and that a separate affidavit from the process server is required. Similarly, Felix's inference that the mere existence of two corporations with similar names licensed by the State of New York means that Duffy must have "made a tactical choice to serve Felix Industries, Inc. [and] not Felix Associates, LLC" is unsupported and speculative. See Notice of Cross Motion, Eschmann Affirmation, ¶ 24. The court concludes that, under these circumstances, Duffy is justified in seeking to amend the summons and complaint in the second action to reflect Felix's correct name. Therefore, the court finds that Duffy's request for an order pursuant to CPLR 3025 (b), is therefore granted; the court grants Duffy's motion in full.

Defendant's Cross Motion

Felix's cross motion seeks an order to dismiss both Duffy's complaint and the other defendants' cross claims against it on the ground of lack of personal jurisdiction. Id., ¶¶ 9-18. However, Felix's arguments are predicated on the erroneous assumption that Duffy failed to commence an action against Felix within the appropriate statute of limitations period because Duffy failed to effect personal service on Felix. As was discussed in the preceding section of this decision, the court has determined that Duffy did, in fact, perform adequate service on Felix and thereby obtained personal jurisdiction over this defendant. Furthermore, an objection to personal jurisdiction should be raised via a CPLR 3211 motion to dismiss, and not after issue has been joined. Moreover, pursuant to CPLR 3211(e), where a defendant is alleging improper service of the pleadings, a motion to dismiss must be made within 60 days of the filing of an answer, or such defense is deemed waived. In any event, for the reasons discussed above, the court finds that Felix's arguments lack merit. Accordingly, Felix's cross motion is denied.

DECISION

Accordingly, for the foregoing reasons, it is

ORDERED that the motion, pursuant to CPLR 602 (a) and 3025 (b), of plaintiff Celine Duffy is granted to the extent that it is ORDERED that the plaintiff's motion for leave to amend the complaint herein is granted, and the amended complaint in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is furtherORDERED that the defendant Felix Associates, LLC, i/s/h/a Felix Industries, Inc., shall serve an answer to the amended complaint within 20 days from the date of said service; and it is furtherORDERED that the plaintiff's motion for consolidation is granted and the action in this court captioned as CELINE DUFFY vs. THE CITY OF NEW YORK under Index No. 105712/05 is consolidated with the action captioned as CELINE DUFFY vs. CONSOLIDATED EDISON OF NEW YORK, INC., VERIZON NEW YORK, INC. and FELIX INDUSTRIES, INC., under Index No. 108010/07, and the consolidated action shall bear the following caption, under index number 105712/2005:

CELINE DUFFY,

Plaintiff,

-against-

THE CITY OF NEW YORK , CONSOLIDATED EDISON OF NEW YORK, INC., [*5]VERIZON NEW YORK, INC. and FELIX ASSOCIATES, LLC,

Defendants. And it is furtherORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is furtherORDERED that upon service on the Clerk of the Court of a copy of this order with notice of entry, the Clerk shall consolidate the papers in the actions hereby consolidated and shall mark his records to reflect the consolidation; and it is furtherORDERED that a copy of this order with notice of entry shall also be served upon the Clerk of the Trial Support Office (Room 158), who is hereby directed to mark the court's records to reflect the consolidation.

ORDERED that the cross motion of defendant Felix Associates, LLC, i/s/h/a Felix Industries, Inc., is, in all respects, denied; it is further

ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon all parties with notice of entry.

Dated: New York, New York

December, 2008

_________________________

Hon. Doris Ling-Cohan, J.S.C. C:\htformat\f5263580.txt Footnotes

Footnote 1:Felix has submitted documentation from the New York State Department of State, Division of Corporations, that shows that "Felix Associates, LLC" and "Felix Industries, Inc." are two separately existing and unrelated corporations. See Notice of Cross Motion, Exhibit D.