Ihope DeWaters Plumbing & Heating Co., Inc. v Ioffe

[*1] Ihope DeWaters Plumbing & Heating Co., Inc. v Ioffe 2010 NY Slip Op 51525(U) [28 Misc 3d 139(A)] Decided on August 30, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 30, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570411/09.

Ihope DeWaters Plumbing & Heating Co., Inc., Plaintiff-Respondent,

against

Igor Ioffe, d/b/a Construction Custom Modeling, Defendant-Appellant.

Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (Peter A. Moulton, J.), dated April 6, 2009, which deemed plaintiff's motion to add a defendant as one to correct a misnomer of an existing defendant and granted that relief, and (2) an order of the same court (Arlene P. Bluth, J.), dated May 6, 2009, which denied defendant's motion to dismiss the action and granted plaintiff's cross motion to amend the caption to correct the corporate name of plaintiff.

Per Curiam.

Orders, dated April 6, 2009 (Peter A. Moulton, J.) and May 6, 2009 (Arlene P. Bluth, J.), affirmed, with $10 costs.

Plaintiff, denominated in the original summons and complaint as Ihope DeWaters Plumbing & Heating Co., Inc., commenced this breach of contract action against Igor Ioffe d/b/a Construction Custom Modeling. Several years after the action was commenced, plaintiff moved to add as a party defendant to the action Construction & Custom Remodeling Ltd., arguing that such was the name of the corporate defendant. Indeed, in his answer to the original complaint, defendant Ioffe asserted that Construction & Custom Remodeling Ltd., of which Ioffe was the sole officer, was the correct name of the corporate defendant. Plaintiff specifically requested that Construction & Custom Remodeling Ltd. be added as a party defendant and that Ioffe remain as a party defendant; plaintiff did not seek to correct a misnomer in the caption (see CPLR 305[c]).

By the first order appealed from, Civil Court stated that it was granting plaintiff's motion to the extent of permitting plaintiff to correct a purported misnomer in the caption regarding defendant's name. However, since Civil Court did not suggest that Ioffe's name was removed from the caption of the action (or otherwise dismiss the action as against him) and noted that the order would "aid in determination as to whether [Ioffe] was acting as an agent on behalf of the [*2]corporation," the actual effect of the order was to grant plaintiff's motion to add a new defendant Construction & Custom Remodeling Ltd.[FN1] Thus, as a result of the first order on appeal, the caption with respect to defendant was amended, in effect, to read "Igor Ioffe and Construction & Custom Remodeling Ltd."[FN2]

Defendants —- Igor Ioffe and Construction & Custom Remodeling Ltd. subsequently moved to dismiss the action on the ground that plaintiff, as denominated in the original summons and complaint, was not a recognized legal entity and therefore lacked capacity to maintain the action. Plaintiff cross-moved to amend the caption of the pleadings to reflect its proper corporate name, Ihope Plumbing & Heating Co., Inc. instead of Ihope DeWaters Plumbing & Heating Co., Inc. By the second order appealed from, Civil Court granted plaintiff's cross motion to amend and denied defendants' motion to dismiss.

Plaintiff's motion to add Construction & Custom Remodeling Ltd. as a party defendant was properly granted. Plaintiff's claim against the corporate defendant "related back" to the commencement of the action against Ioffe, since the claims against the individual and corporate defendants arose out of the same transaction, the corporate defendant is "united in interest" with Ioffe, the corporation's sole officer (see generally Preferred Elec. & Wire Corp. v Duracraft Prod., Inc., 166 AD2d 425 [1990]), and the corporate defendant knew the action would have been brought against it but for plaintiff's failure to identify the proper parties (see generally Morel v Schenker, 64 AD3d 403 [2009]). We note that Ioffe was served with the summons and complaint, and subsequently waived all jurisdictional defenses to the action (see Port Chester Elec. Co. v Ronbed Corp., 28 AD2d 1008 [1967]).

Civil Court also properly granted plaintiff's subsequent (cross) motion to correct a misnomer regarding its name and denied defendants' motion to dismiss on the ground that plaintiff lacked capacity to maintain the action. Amendment of the caption to reflect the correct corporate name of plaintiff by deleting the word "DeWaters" did not prejudice the defense, which knew the true name of plaintiff, as reflected on the proposal and work orders presented to defendants by plaintiff and checks the corporate defendant issued to plaintiff for work performed (see generally Matias v Rebecca's Bakery, 19 AD3d 156 [2005]). The claim of prejudice arising from defendants' assertion that they would be time-barred from asserting certain third-party claims against a specified individual for contribution or indemnification is without merit, since the statute of limitations for such claims is six years (CPLR 213[2]) running from the date the party seeking contribution or indemnification has paid the underlying claim (see Tedesco v A.P. Green Indus., Inc., 8 NY3d 243 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2010 Footnotes

Footnote 1:Civil Court's order cannot be construed to mean that the caption was amended to reflect that the proper defendant was "Igor Ioffe d/b/a Construction & Custom Remodeling Ltd.," since it is well settled that a corporation is a separate and distinct legal entity and that an individual cannot do business as a corporation (see generally Morris v Dept. of Taxation,82 NY2d 135 [1993]; Neggy Travel Serv., Inc. v Sabena Belgian World Airlines, 56 AD2d 537 [1977]).

Footnote 2:Civil Court stated that the ampersand and the prefix "Re" were missing from the corporate name, apparently overlooking that the suffix "Ltd." was also absent.