Citibank (South Dakota) v Dehal
Annotate this CaseDecided on January 31, 2012
Civil Court of the City of New York, Richmond County
Citibank (South Dakota), Plaintiff
against
Sonia Veornica Dehal, aka Sonia Wright, Defendant.
13286/11
Attorney for plaintiff
Forster & Garbus, LLP
P.O. Box 9030
Commack, NY 11725
Defendant Pro Se
Sonia Veornica Dehal
AKA Sonia Wright
Philip S. Straniere, J.
Plaintiff, Citibank, NA, commenced this action against the defendant, Sonia Veornica Dehal aka Sonia Wright. Service was made in July 2011 and to date the defendant has neither appeared nor answered.
This is one of several unopposed applications by plaintiff pursuant to CPLR §2001 to amend the caption in regard to the name of the defendant. In each proceeding, there is the name of a defendant followed by an "aka" designation. Counsel for the plaintiff alleges that there was a "typographical error when the Summons and Formal Complaint was printed" which led to the inclusion of the second "aka" name. No other explanation is given.
It should be noted that counsel's affirmation in support of the motion cites CPLR §2001 as the basis for relief yet the "Notice of Motion" references CPLR §1018 & CPLR §1021 as the applicable statutory sections. These citations are for "Substitution upon transfer of interest" and "Substitution procedure; dismissal for failure to substitute; presentation of appeal." The court must question why these sections are applicable? Or is this too a typographical error? It would seem CPLR §305( c), CPLR §2101(f) and CPLR §3025 may be more relevant. [*2]
The court is under the impression that plaintiff is not seeking to substitute one party for another but to amend the name of the defendant by dropping an "aka" reference. If this is the case, that would make the sections selected inapplicable. For an analogous situation, it would be as if a baseball writer wanted to change a reference to Charles Dillon Stengel's line-up card starting Lawrence Peter Berra and Edward Charles Ford to say Casey Stengel's line-up of Yogi Berra and Whitey Ford. If this is a "substitution" situation, then it would be Ralph Houk's line-up with Bob Cerv pinch-hitting for Berra and moving to left field and Luis Arroyo relieving Ford in a save situation.
If in fact the "substitution" sections are applicable, then the plaintiff must discontinue this litigation with prejudice against the party wrongfully named in the pleadings. Although damage may already have been done to those persons' credit because credit agencies are now picking up litigation against individuals and not just judgments.
The court must question whether this is in fact a "typographical error" as that term is commonly understood. For instance, in this matter a typographical error might appear to be the middle name of the defendant. She is sued as "Veornica" when most people would assume the name should be spelled "Veronica" like the name of Archie Andrew's girlfriend or "peek-a-boo" hair styled actress Lake. Although having done several hundred name change applications, this court has learned to stop questioning such variations in the spelling of common names.
Generally, a typographical error would be something like inadvertently putting "I" before "E" after "C" when you know that is wrong. Or having a newspaper story for the review of a World War II movie about the bombing of Pearl Harbor with a headline shouting "Torah! Torah! Torah!" because you are not fluent in either Japanese or Hebrew. Or dropping the "P" from Pseudolus' name when you prepare the character list for "A Funny Thing Happened On The Way To The Forum" because you did not realize it was silent.
The alleged error in these filings is the addition of an "aka" for each defendant. This is not a typographical error. It is the improper inclusion in the caption of information presumably supplied by the client concerning the debtor but not directly related to the proper identification of the person opening the account. If the debtor did use both names during the life of the account, then why not include all known names?
It would be more accurate to conclude that this discrepancy is akin to a mistake in the input or interpretation of information such as the famous "Dewey Beats Truman" headline in the Chicago Tribune; Yogi Berra allegedly thinking they spelled his name wrong on a check because it said to "pay to Bearer";or the lead singer of Iron Butterfly thinking he is singing "In the Garden of Eden" while everyone is hearing "Inagodadavida."
What concerns the court about this application is that by excluding the additional information in the caption are not banks and employers more likely to wrongfully restrain or garnish the account of a person with the same or a similar name to that of the debtor? Would not [*3]inclusion of all variations of the debtor's name make proper identification of the defendant more likely? For instance, two of the files seek to delete a reference to "Sr." after the defendant's name. Too often the court has had to entertain orders to show cause from persons having no relationship with the plaintiff and unconnected to the litigation but with a name the same as the named defendant who have had their bank accounts wrongfully restrained. Plaintiff's application seems to be designed to make that situation more likely than less likely.
However, as this application is from counsel and appears to reflect an error in the preparation of the pleadings, rather than an unexplained policy change dictated by the creditor, the court will grant the relief requested.
Finally, a review of the pleadings in each of these matters discloses that they are so devoid of information concerning the account that should the plaintiff seek a default judgment, it would have to be denied for lack of "requisite proof" [CPLR §3215]. Counsel may want to review numerous decisions of this court setting forth the criteria for entering a default or inquest judgment in consumer credit transactions and amend the complaint before the court is faced with the decision whether to dismiss it.
Plaintiff's motion is granted. The clerk will enter an order amending the name of the defendant in the caption. The clerk is directed not to enter a judgment in this action without the consent of the court.
The foregoing constitutes the decision and order of the court.
Dated: January 31, 2012
Staten Island, NYHON. PHILIP S. STRANIERE
Judge, Civil Court
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