Bailey v Enterprise, Inc.

[*1] Bailey v Enterprise, Inc. 2020 NY Slip Op 50260(U) Decided on February 6, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
2018-2313 S C

Julius Bailey, Appellant,

against

Enterprise, Inc., Respondent.

Julius Bailey, appellant pro se. Enterprise, Inc., respondent pro se (no brief filed).

Appeal from an order of the District Court of Suffolk County, First District (John Schettino, J.), dated August 22, 2018. The order denied plaintiff's motion to amend the caption by changing the name of the defendant from "Enterprise, Inc." to "Elrac, LLC, Doing Business as Enterprise Rent A Car, Inc."

ORDERED that the order is modified by providing that the denial of plaintiff's motion to amend the caption by changing the name of the defendant from "Enterprise, Inc." to "Elrac, LLC, Doing Business as Enterprise Rent A Car, Inc." is without prejudice to renewal upon proper papers; as so modified, the order is affirmed, without costs.

Plaintiff commenced this small claims action against Enterprise, Inc., with a notice of claim sent to Enterprise, Inc. at 434 East Jericho Turnpike, Huntington Station, New York 11746, seeking to recover damages based on the car rental company's having paid a traffic ticket and having charged the amount paid against plaintiff's charge card without affording plaintiff the opportunity to dispute the ticket. Defendant failed to appear, and, following an inquest, the District Court, on June 11, 2018, awarded a judgment in favor of plaintiff, as against "Enterprise, Inc.," in the principal sum of $66.95. After plaintiff failed in his effort to enforce the judgment, he moved to amend the caption to name "Elrac, LLC, Doing Business as Enterprise Rent A Car, Inc." as the defendant. In his supporting affidavit, plaintiff stated that he sought the amendment based on a "blue card" he had received from the sheriff which informed him that such an amendment was required. The affidavit of service stated that the motion had been served by hand on "Enterprise Rent A Car" at 1141 East Jericho Turnpike, Huntington, New York 11743. By order dated August 22, 2018, the District Court denied the unopposed motion.

UDCA 1814 (b) has been interpreted to "permit[] a nunc pro tunc order in a small claims action to correct a faulty designation of a party defendant, even after the rendition of a judgment, in order to assist a prevailing plaintiff in enforcing the judgment" (Litvak v Comfort Auto Group NY, LLC, 64 Misc 3d 135[A], 2019 NY Slip Op 51103[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Goldstein v Uncle Sam's NY LLC, 41 Misc 3d 81 [App Term, 1st Dept 2013]; Bennett v Class N'Style Travel & Limousine Ltd., 23 Misc 3d 8 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). Since plaintiff's moving papers failed to provide any documentary substantiation for plaintiff's belief that "Elrac, LLC, Doing Business as Enterprise Rent a Car, Inc.," rather than "Enterprise, Inc.," was the true name of the defendant, or to explain why service of the papers at an address other than the address set forth on the small claims complaint form was adequate notice of the pendency of his motion, the District Court properly denied plaintiff's postjudgment motion to amend the caption. However, plaintiff should be afforded the opportunity to renew the motion upon proper papers.

Accordingly, the order is modified by providing that the denial of plaintiff's motion to amend the caption by changing the name of the defendant from "Enterprise, Inc." to "Elrac, LLC, Doing Business as Enterprise Rent A Car, Inc." is without prejudice to renewal upon proper papers.

ADAMS, P.J., TOLBERT and GARGUILO, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 6, 2020