Marks v 170 W. 85th St. Hous. Dev. & Fund Corp.

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Marks v 170 W. 85th St. Hous. Dev. & Fund Corp. 2022 NY Slip Op 34063(U) November 30, 2022 Supreme Court, New York County Docket Number: Index No. 653121/2020 Judge: Debra A. James 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. INDEX NO. 653121/2020 [FILED: NEW YORK COUNTY CLERK 11/30/2022 11:30 AM] NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/30/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES 59 Justice ----------------------------------------------------------------- ----------------X JEANETTE MARKS, 653121/2020 INDEX NO. 10/30/2020 MOTION DATE Plaintiff, 001 MOTION SEQ. NO. - V - 170 WEST 85TH ST. HOUSING DEVELOPMENT AND FUND CORPORATION, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,20,21,22,23,24,25,26,27,28,29,30 were read on this motion to/for DISMISS ORDER Upon the foregoing documents, it is ORDERED that the motion of defendant to dismiss the complaint for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8) is DENIED; and it is further ORDERED that the plaintiff's cross motion for leave to amend her pleadings, in particular, the amended summons and amended complaint herein to correct a misnomer by changing the name of defendant in the first amended summons and in the first amended complaint from 1 70 West 85 th St Housing Development and Fund Corporation to 170 West 85 St Housing Development Fund Corporation is granted, and the second amended summons and second amended complaint in the proposed form annexed to the moving papers (NYSCEF 653121/2020 MARKS, JEANETTE vs. 170 WEST 85TH ST. HOUSING Motion No. 001 [* 1] 1 of 4 Page 1 of4 INDEX NO. 653121/2020 [FILED: NEW YORK COUNTY CLERK 11/30/2022 11:30 AM] NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/30/2022 Document Number 22) shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further ORDERED that cross movant shall, entry of this order, within ten (10) days from file such second amended summons and second amended complaint with a copy of this order with notice of entry upon the County Clerk and the Clerk of the General Clerk's Office, who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E- Filing" page on the court's website); and it is further ORDERED that the defendant shall serve an answer to the second amended complaint within twenty (20) days from the date of service of a copy of this order with notice of entry; and it is further ORDERED that counsel are directed to post on NYSCEF a proposed preliminary conference conference order or proposed competing preliminary order(s) at least two days before January 12, 2023, on which date counsel shall appear via Microsoft Teams, unless such appearance be waived by the court. 653121/2020 MARKS, JEANETTE vs. 170 WEST 85TH ST. HOUSING Motion No. 001 [* 2] 2 of 4 Page 2 of 4 [FILED: NEW YORK COUNTY CLERK 11/30/2022 11:30 AM] NYSCEF DOC. NO. 31 INDEX NO. 653121/2020 RECEIVED NYSCEF: 11/30/2022 DECISION As stated in Ober v Rye Town Hilton, 155 AD2d 16, 19 (2d Dept 1990), CPLR 305 (c) authorizes the court, in its discretion, to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced". This provision, and its predecessors, has been consistently interpreted as allowing a misnomer in the description of a party defendant to be cured by amendment, even after the Statute of Limitations has run. Generally, such an amendment should be granted where (1) there is 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. In Ober, the appellate court, in upholding personal jurisdiction, further reasoned: Even assuming that the delivery of the original summons and complaint at the hotel, which occurred on May 2, 1986, did not constitute valid service upon Hilton Hotels Corporation, this defect was remedied by service of the summons and complaint on the Secretary of State in July 1988. Furthermore, there is no proof that granting the plaintiffs' application for leave to amend would result in any actual prejudice to any party. The facts of Ober are practically on all fours with those of the herein matter. For the reasons stated by the Appellate Division, Second Department, in Ober, this court shall deny 653121/2020 MARKS, JEANETTE vs. 170 WEST 85TH ST. HOUSING Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 653121/2020 !FILED: NEW YORK COUNTY CLERK 11/3 0 /2 02 2 11: 3 0 AM! NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 11/30/2022 defendant's motion to dismiss this action for lack of personal jurisdiction and grant plaintiff's cross motion to amend her summons and complaint. P- ~ fl - } ~ 20221130093845DJ AMESD25268F9451844089AD0D04389279880 11/30/2022 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 8 NON-FINAL DISPOSITION DENIED SETTLE ORDER GRANTED IN PART SUBMIT ORDER INCLUDES TRANSFER/REASSIGN 653121/2020 MARKS, JEANETTE vs. 170 WEST 85TH ST. HOUSING Motion No. 001 [* 4] DEBRA A. JAMES, J.S.C. 4 of 4 FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page4 of 4

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