Franciosa v Florida Concept Pools Inc.

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Franciosa v Florida Concept Pools Inc. 2021 NY Slip Op 32256(U) April 6, 2021 Supreme Court, Westchester County Docket Number: Index No. 58733/2020 Judge: Terry Jane Ruderman 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] WESTCHESTER COUNTY CLERK 04/22/2021 12:16 PM INDEX NO. 58733/2020 "'~ NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/06/2021 "1 To commence the statutory time for appeals as of right (CPLR55 13(a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER . . ~~~~~- -~- -~ •..-- .•.-- -~~ .•.-~ -"'-~~-~-.-- --,.,.~ '-- --- -- -- -.--- -~ ~~-~ ~~.,.,.,.,~~-.,~,--.,.,- ..:'-•..X . "- ...••.. , ARTHURFRANCIOSA, Plaintiff; Index No. 58733/2020 -against- DECISION and ORDER FLORIDA CONCEPT POOLS INC., LATHAM POOL PRODUCTS INC. , .. ,. , \ " ' Motion Sequence No.2 Defendants. .; - -~~--~-~.•.,~~";~ ~---~-~.,~ -~~~".--.,--- ~---- ------- ----::i-~~ ~~---~-~.•-~--,.;.,-.,-,.-.,-x RUDERMAN, J. The following papers were considered in:connection with the motion by defendant Florida Concepts Pools Jnc., i/s/has FloridaConcept Pools Inc., foran order pursuant to CPLR 305 and 1003, dismissing the amende~:lsurrunons andaIriended complaint: Numbered 1 2 3 Papers Notice of Motion, Affirmation, Exhibits A - E Affirmation in Opposition, Exhibit A " Reply Affirmation, Exllibit F " Plaintiff Arthur Franciosacommenced , this action. on August 18,2020, naming as defendants Florida ConceptPools -Inc. and Latham Pool Products Inc., ch=limingthat he had - * , entered into a purchase sale agreement with both d~fendiillts for a particular "Pacific Blue" color of fi~erglass pool, but was delivered a pool of the wrong color. His,causes of action claimed breach of contract, negligenc~'in the sale; supplyanCl delivery of the incorrect pool, and fraud and ( a violation of General Business Law ' , S 349 . (a) as,against;FloridaConceptPools. Florida (" Concepts Pools Inc., i/s/h as Florida Concept Pools Inc., 'filed an answer -I., 1 of 4 on October 21,2020, [*FILED: 2] WESTCHESTER COUNTY CLERK 04/22/2021 12:16 PM NYSCEF DOC. NO. 44 INDEX NO. 58733/2020 RECEIVED NYSCEF: 04/06/2021 with affirmative defenses and a counterclaim asserting that plaintiff s claims against it are frivolous and that it is entitled to damages under 12 NYCRR S 130-1.1. Following Latham Pool Products's answer filed on December 16,2020, with crossclaims, plaintiff filed an amended summons and amended complaint on January 4,2021. The amended complaint added as a defendant Kenneth Lauro Sr., the president of Florida Concepts Pools. In moving for dismissal, defendant Florida Concepts Pools observes that in amending the complaint, plaintiff persisted in the error of leaving the pluralizing "s" off the word "Concepts" in its name, at}d further, that plaintiff erroneously termed the new summons an "Amended Summons" rather than a "Supplemental Summons." It argues that plaintiff was not entitled to add Kenneth Lauro Sr. as a defendant as it did, and that plaintiff has not demonstrated a proper basis for a grant of leave to amend the complaint. However, "CPLR 1003 provides in part that "(p]arties may be added at any stage of the action by leave .of court or by stipulation of all parties who have appeared, or once without leave of court within twenty days after service of the original summons or at anytime before the period for responding to that summons expires or within twenty days after service of apleading responding to it" (CPLR 1003). Since Latham Pool Products served an answer responding to the original complaint on December 16, 2020, service of a supplemental sUlllIilons and amended complaint on January 4, 2021, adding Kenneth Lauro Sr. as a party defendant was permissible without leave of the court, pursuant to CPLR 1003. Plaintiffs error in terming the uploaded document an "amended" rather than a "supplemental" summons and amended complaint does not necessitate dismissal of the amended complaint. Nor is it necessary or appropriate for the Court to review the merits of the amended complaint. -2- 2 of 4 " it [*FILED: 3] WESTCHESTER COUNTY CLERK 04/22/2021 12:16 PM NYSCEF DOC. NO. 44 INDEX NO. 58733/2020 RECEIVED NYSCEF: 04/06/2021 "CPLR 305 (c) authorizes the court? in its discretion, to 'allow any summons or proof of service of a summons to be amended, if issued is not prejudiced'" a: substantial right of a p~rty against whom the summons (Oberv Rye Town Hilton, 159 AD2d 16; 19 [2d Dept 1990]). Given ". " that on Janu3ry 4,2021, plaintiffhad therighfto . file asqpplemental summons and amended complaint adding a party, "\vithout leave of court, itcaoo9t be said that any substantial right of . - - Florida Concepts Pools orKenneth.Laum '~i:. Sr.wouldbe ",amendeg summons" to be corrected and transfo~ed prejudiced by allowing the filed into "a suppletnental summons." ,,";' The movant is not entitled to the dismissal, itsee~s on'the ground that a document that plaintiff had the rightto file without leave of court was mis~named; no jurisdictional defect . ~ ",.. . f' -, warranting dismissal is presented here: Accordingly, it is hereby' ORDERED thatthe motion is denied, Md ins further ORDERED that the pleadings filed as of right o~;January 4, 2021 shall be deemed a ~.~ - ': , - - ". "supplemental summons and verified 'ainende~ complaint," and it is further .::: . .' -. ,. -, ORDERED that the caption shall be c6rrect~d so:as to correctly identify the movi~g defendant as "Florida Concepts Pools Inc.," and iIi all otheriespects . . shall be that employed in the January4,2021 " complaint, "supplemental summons . and verified amended _. -' , I, and it is further ORDERED that the caption as so modifi~d'shall now read -< the caption of the action . . ,. -3:.\>~. 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 04/22/2021 12:16 PM NYSCEF DOC. NO. 44 INDEX NO. 58733/2020 RECEIVED NYSCEF: 04/06/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------------~----)( ARTHUR FRANCIOSA, Plaintiff, Inde)( No. 58733/2020 -againstFLORIDA CONCEPTS POOLS INC., KENNETH LAURO SR., and LATHAM POOL PRODUCTS INC. Defendants. -----------------------------------------------------------------------------)( and the Clerk is directed to modify the caption accordingly, and it is further ORDERED that the parties shall appear in the Compliance Conference Part of this Court on a date and in a manner of which they will be notified by that Part. This constitutes the Decision and Order of the Court. Dated: White Plains, New York April .fL, 2021 ~~~~ ~ -4- 4 of 4 YJANE RUDERMAN, l.S.C.

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