Air Tite Mfg., Inc. v. Acropolis Associates

• Decision Date: 11 March 1994
• Docket Number: No. 1,1
• Citation: 612 N.Y.S.2d 706,202 A.D.2d 1067
• Court: New York Supreme Court — Appellate Division
• Parties: AIR TITE MANUFACTURING, INC., Individually and as Assignee of Certain Accounts Receivable Owed to J & L Home Improvement Corp., Plaintiff, v. ACROPOLIS ASSOCIATES, Appellant. Apple Bank for Savings, Intervenor-Respondent. Appeal

Page 706

612 N.Y.S.2d 706

202 A.D.2d 1067

AIR TITE MANUFACTURING, INC., Individually and as Assignee

of Certain Accounts Receivable Owed to J & L Home

Improvement Corp., Plaintiff, v. ACROPOLIS ASSOCIATES, Appellant.

Apple Bank for Savings, Intervenor-Respondent. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

March 11, 1994.

Richard M. Creditor, Forest Hills, for appellant.

Shea and Gould by Helene Freeman, New York City, for intervenor-respondent.

Before GREEN, J.P., and BALIO, FALLON, DOERR and BOEHM, JJ.

MEMORANDUM:

Supreme Court properly ordered the caption to be amended to reflect that Acropolis Associates (Acropolis), a partnership, rather than Acropolis Associates, Inc., a corporation, was the proper party in this action. Amendments to the caption "are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue" (Creative Cabinet Corp. of Am. v. Future Visions Computer Store, 140 A.D.2d 483, 484-485, 528 N.Y.S.2d 596; see, CPLR 305[c]; 2001; see also, Albilia v. Hillcrest Gen. Hosp., 124 A.D.2d 499, 500, 508 N.Y.S.2d 10; Connor v. Fish, 91 A.D.2d 744, 745, 457 N.Y.S.2d 986; Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77, 80, 345 N.Y.S.2d 721). In the first three affirmative defenses contained in its answer, Acropolis admitted that it had been improperly named as a corporation and it defended in its capacity as Acropolis Associates, a partnership. The misnomer in the caption was an obvious mistake and its correction did not prejudice Acropolis (see, Creative Cabinet Corp. of Am. v. Future Visions Computer Store, supra, 140 A.D.2d at 484-485, 528 N.Y.S.2d 596). For the same reasons, Supreme Court did not err in denying Acropolis's motion to vacate the April 1991 order amending the caption and in granting the cross motion of Apple Bank for Savings (Apple Bank) to amend its summons nunc pro tunc to describe correctly Acropolis as a partnership.

Acropolis's related argument that Supreme Court had no personal jurisdiction over the partnership is also without merit. Acropolis in its partnership name appeared and defended in this action (see, CPLR 320[b]. Moreover, Acropolis did not raise the affirmative defense of lack of personal jurisdiction either in its answer or by motion, thereby waiving that defense (see, CPLR 320[b]; 3211[e]; Kukulka v....