King v Walmart, Inc.
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King v Walmart, Inc. 2016 NY Slip Op 33126(U) September 14, 2016 Supreme Court, Onondaga County Docket Number: 2014EF1035 Judge: Hugh A. Gilbert Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ONONDAGA COUNTY CLERK 09/19/2016 02:12 PM NYSCEF DOC. NO. 43 INDEX NO. 2014EF1035 RECEIVED NYSCEF: 09/19/2016 At a Term of Supreme Court held in and for the County of Onondaga , in, the City of Watertown , New York on the 9th day of August, 2016 . PRESENT: HONORABLE HUGH A. GILBERT Supreme Court Justice STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA AMBER KING , MEMORANDUM DEC ISION AND ORDER Plaintiff, Index No. 2014EF1035 RJ I No. 33-15-0405 -vsWALMART, INC., Defendant. Pla intiff Amber King commenced th is action on March 28, 2014 to recover damages for personal injuries sustained on May 25, 2011 at the Wal-Mart store in Camillus, New York. She claims that she was injured when she sat in a display cha ir and it tipped backwards. Discovery is complete and the case is on the ca lendar. Pending before the Court is a motion dismissing the Plaintiffs Verified and Amended Verified Compla int in its entirety on the grounds that the Court lacks jurisdiction over the proper Defendants , Wal-Mart Store , Inc., or Wa l-Mart Stores 1 of 4 [* 2] East L.P. It also seeks dismissal because no action was timely commenced against the proper Defendant. Plaintiff has cross moved for leave to amend the Summons and Complaint to correct the misnomer. :I: The basic facts relevant to the pending motions are not in dispute. After commencement, Plaintiff effected service on the Legal Department at the Executive Office of Wal-Mart Stores, Inc. , in Bentonville, Arkansas. This was the address listed with the New York State Department of State. Defendant appeared by the service of an Answer which asserted that the Court lacked jurisdiction over it. In response to Plaintiff's Demand regarding that defense, Defendant asserted that Plaintiff failed to properly serve it. The parties conducted discovery and depositions with a Wa l-Mart representative being deposed on July 1, 2015. Plaintiff served and filed a trial note of issue on March 6, 2016 and the case is now scheduled for trial. We disagree with Plaintiff that Defendant wa ived its defense by failing to particularize it or move for relief shortly after service. We do find , however, that amendment is appropriate herein, notwithstanding the fact that the statute of limitations has expired. Defendant suggests that th is is not a situation where a proper Defendant was served with an improperly captioned Summons and Complaint. 2 2 of 4 [* 3] Rather it contends that the party sued has no relationship to the premises at issue and does not share a unity of interest with the proper Defendants. It appears to ignore the fact that, notwithstanding the incorrect name in the caption, the proper Defendant was in fact served, appeared, and has participated in the completion of all required discovery such that the case is now on the trial calendar. The amendment of a Summons and Complaint to reflect the proper name of a Defendant or correct a misnomer should be permitted only if "(1) there is l> evidence that the correct Defendant (misnamed in the original process) has in fact been properly served, and (2) the correct Defendant would not be prejudiced by granting the amendment sought." Ober vs. Rye Town Hilton, 159 AD2d 16, 20 (1990). Just as in Ober, these two elements have been satisfied here. Plaintiff herein does not seek to add or substitute a party Defendant but wishes to correct a misnomer. There is no proof that the granting of Plaintiff's motion would result in any prejudice. The party served but misnamed has appeared and defended the action and cannot advance any claim of prejudice other than the running of the statute of limitations, which is not sufficient. Public Service Mutual Insurance Co. vs. Joyce, 182 AD2d 535 (1992). Having served the party she intended to have, we find amendment to correct the name appropriate. Medina vs. City of New York, 167 AD2d 268 (1990). 3 3 of 4 [* 4] .. THEREFO RE, it is ORDERED , ADJUDGED AND DECREED that the Defendant's motion is respectfully denied ; and it is further ORDERED , ADJUDGE D AND DECREED that the Plaintiff's cross motion is hereby granted; and it is further ORDERED, ADJUDGED AND DECREED that the JURY TRIAL shall )> commence on Tuesday, February 14, 2017 at 9:00 a.m. at the Onondaga County Courthouse, 401 Montgomery Street, Syracuse, New York. Dated: Septembe r 14, 2016 at Watertown , New York ENTER 4 4 of 4
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