Fitness Inst., Inc. v. Hallac

• Decision Date: 23 December 2020
• Docket Number: CA 19-01252,1094
• Parties: The FITNESS INSTITUTE, INC., Doing Business as Fitness Institute and Pilates Studio, Plaintiff-Respondent, v. Ismet HALLAC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 2136

134 N.Y.S.3d 888 (Mem)

The FITNESS INSTITUTE, INC., Doing Business as Fitness Institute and Pilates Studio, Plaintiff-Respondent,

v.Ismet HALLAC, Defendant-Appellant.

1094

CA 19-01252

Supreme Court, Appellate Division, Fourth Department, New York.

December 23, 2020

GROSS SHUMAN P.C., BUFFALO (JOHN K. ROTTARIS OF COUNSEL), FOR DEFENDANT-APPELLANT.

TRONOLONE & SURGALLA, P.C., BUFFALO (JOHN B. SURGALLA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this breach of contract action as Fitness Institute and Pilates Studio, Inc. and subsequently moved for leave to amend the caption of the summons and complaint to designate plaintiff by its correct corporate name, The Fitness Institute, Inc., doing business as Fitness Institute and Pilates Studio. Defendant appeals from an order that granted plaintiff's motion and denied defendant's cross motion for summary judgment dismissing the complaint, which was premised on the ground, inter alia, that plaintiff, as originally named in the action, was a non-existent entity that could not have privity of contract with defendant and therefore lacked standing and legal capacity to sue. We affirm.

We conclude that Supreme Court did not abuse its discretion in granting plaintiff's motion to the extent that it sought to correct a misnomer with respect to plaintiff's name (see CPLR 2001, 5019 [a] ; Glanz v. Parkway Kosher Caterers , 176 A.D.3d 686, 687-688, 110 N.Y.S.3d 129 [2d Dept. 2019] ; Covino v. Alside Aluminum Supply Co. , 42 A.D.2d 77, 81-82, 345 N.Y.S.2d 721 [4th Dept. 1973] ; see also Pronti v. Hogan , 278 A.D.2d 841, 841, 718 N.Y.S.2d 909 [4th Dept. 2000] ). "Mistakes relating to the name of a party involving a misnomer or misdescription of the legal status of a party surely fall within the category of those irregularities which are subject to correction by amendment, particularly where the other party is not prejudiced and should have been well aware from the outset that a misdescription was involved" ( Cutting Edge v. Santora , 4 A.D.3d 867, 868, 771 N.Y.S.2d 462 [4th Dept. 2004] [internal quotation marks omitted]; see A. A. Sutain, Ltd. v. Montgomery Ward & Co. , 22 A.D.2d 607, 608-609, 257 N.Y.S.2d 724 [1st Dept. 1965], affd 17 N.Y.2d 776, 270 N.Y.S.2d 626, 217 N.E.2d 674 [1966] ; Covino , 42 A.D.2d at 80, 345 N.Y.S.2d 721 ). Permitting a plaintiff to correct such an error does "not constitute an improper substitution of a different plaintiff" but merely corrects the title ( Glanz , 176 A.D.3d at 687, 110 N.Y.S.3d 129 ; see Bessa v. Anflo Indus., Inc. , 148 A.D.3d 974, 977, 51 N.Y.S.3d 102 [2d...