Five Borough Waterproofing Corp. v Santelia

[*1] Five Borough Waterproofing Corp. v Santelia 2007 NY Slip Op 50875(U) [15 Misc 3d 137(A)] Decided on April 26, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-463 Q C.

Five Borough Waterproofing Corp., Respondent,

against

Viola Santelia, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered December 22, 2005. The order, insofar as appealed from as limited by the brief, denied Viola Santelia's motion, in effect, to vacate the order, entered on default, granting plaintiff's motion to amend the caption to name her as defendant.

Order, insofar as appealed from, reversed without costs and motion by Viola Santelia to vacate the order amending the caption granted.

In the instant commercial claims action, plaintiff, Five Borough Waterproofing Corp., alleged nonpayment of the sum of $5,000 for services rendered pursuant to a roof repair contract with defendant, "Santelia & Tortora Food Market." Defendant counterclaimed for breach of contract in the sum of $5,000. The parties consented to arbitration in lieu of a trial before the court. The arbitrator found in favor of plaintiff, and judgment was awarded in the principal sum of $5,000 against "Santelia & Tortora Food Market." Plaintiff then moved to amend the caption to name only Viola Santelia as defendant, and the court below granted plaintiff's motion on default. Thereafter, Viola Santelia moved to vacate said order on the grounds that she was not served with the complaint or the motion and that she had not signed the contract. The court denied her motion.

Generally, an amendment may be permissible to correct mistakes or irregularities under certain circumstances. "Mistakes relating to the name of a party involving a misnomer or misdescription of the legal status of a party surely fall within the category of those irregularities which are subject to correction by amendment, particularly when the other party is not prejudiced and should have been well aware from the outset that a misdescription was involved" (Cutting Edge v Santora, 4 AD3d 867, 868 [2004]; Covino v Alside Aluminum Supply Co., 42 AD2d 77, 80 [1973]). We find that the amendment was not permissible under the foregoing [*2]criteria. Moreover, by moving to amend the caption, plaintiff essentially argued that Viola Santelia should be held individually liable for the acts of the company. However, it is well settled that the party seeking to hold an individual liable has the burden of establishing a basis to do so (see Maggio v Becca Constr. Co., 229 AD2d 426 [1996]; Ravel v Dirco Enters., Inc., 159 AD2d 564 [1990]). In the instant matter, a review of the record indicates that plaintiff failed to demonstrate such a basis. Therefore, the court below improperly denied Viola Santelia's motion and did not render substantial justice between the parties in accordance with the rules and principles of substantive law (CCA 1804-A, 1807-A).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 26, 2007