Boai Zhong Yo Acupuncture Servs., P.C. v Dollar Rent A Car
Annotate this CaseDecided on October 2, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-888 K C.
Boai Zhong Yo Acupuncture Services, P.C. a/a/o MARIO MARTINEZ, Appellant,
against
Dollar Rent A Car, Respondent, 1; CITIWIDE AUTO LEASING, INC., Nonparty-Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L.
Waltrous, J.), dated April 5, 2006. The order granted so much of a motion by
nonparty-respondent Citiwide Auto Leasing, Inc. as sought to stay execution of a marshal's notice
of levy and sale as against it, and denied plaintiff's cross motion for costs and sanctions.
Order modified by providing that the granting of so much of Citiwide Auto Leasing, Inc.'s motion as sought an order staying execution of the marshal's notice of levy and sale is without prejudice to an application by plaintiff to amend the pleadings and judgment in accordance with the following memorandum; as so modified, affirmed without costs.
In this action against Dollar Rent A Car, located at 1945 Utica Avenue, Brooklyn, New York, seeking to recover assigned first-party no-fault benefits, the court, by order dated November 10, 2005, granted plaintiff's motion for summary judgment, and, on January 3, 2006, [*2]entered judgment in favor of plaintiff. Thereafter, Citiwide Auto Leasing, Inc. (Citiwide), located at 1945 Utica Avenue, Brooklyn, New York, which was not named in the action, moved by order to show cause to, inter alia, stay execution of the marshal's notice of levy and sale as against it. Plaintiff opposed the motion and cross-moved for costs and sanctions. The court below permanently stayed execution of the marshal's notice as against Citiwide and denied plaintiff's cross motion for costs and sanctions.
The applicable rule is that if a defendant has been actually served with the summons and complaint but is named therein only as a trade name, jurisdiction has been obtained and the action need not be dismissed, but the pleadings (and judgment) should be amended to substitute the real party in interest (see Ralph Ferrara, Inc. v Bermuda Limousine Co., 184 AD2d 301 [1992]; Ober v Rye Town Hilton, 159 AD2d 16 [1990]). Such an amendment should be allowed where it is shown that the correct defendant was properly served and that such defendant would not be prejudiced by granting the amendment (Ober, 159 AD2d at 20). In the instant case, plaintiff failed to cross-move to amend, and failed, in opposition to Citiwide's motion, to establish that Citiwide does business as Dollar Rent A Car and was properly served. Thus, Citiwide's motion to stay execution of the marshal's notice as against it was properly granted. However, since it appears plaintiff may be able to show that Citiwide does business as Dollar Rent A Car, plaintiff should be given an opportunity to seek to amend.
Since plaintiff failed to establish that Citiwide and Dollar Rent A Car are a single entity, it cannot be said, at this juncture at least, that Citiwide's motion to stay the execution of the marshal's notice of levy and sale as against it constituted "frivolous conduct" for which sanctions may be imposed (Rules of the Chief Administrator [22 NYCRR] § 130.1-1 [a], [b]). Accordingly, the court properly denied plaintiff's cross motion for costs and sanctions.
Pesce, P.J., and Rios, J., concur.
Golia, J., taking no part.
Decision Date: October 02, 2007
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