Honeyman v. Curiosity Works, Inc.

• Decision Date: 17 September 2014
• Docket Number: 2013-03523
• Citation: 120 A.D.3d 1302,993 N.Y.S.2d 77,2014 N.Y. Slip Op. 06176
• Court: New York Supreme Court — Appellate Division
• Parties: Francis R. HONEYMAN, et al., respondents, v. CURIOSITY WORKS, INC., et al., defendants, National Underwriter Company, etc., appellant.

120 A.D.3d 1302

993 N.Y.S.2d 77

2014 N.Y. Slip Op. 06176

Francis R. HONEYMAN, et al., respondents

v.CURIOSITY WORKS, INC., et al., defendants

National Underwriter Company, etc., appellant.

2013-03523

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

Sept. 17, 2014.

Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for appellant.

O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Ira E. Goldstein of counsel), for respondents.

THOMAS A. DICKERSON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

In an action, inter alia, to recover damages for personal injuries, the defendant National Underwriter Company appeals from an order of the Supreme Court, Queens County (Greco, Jr., J.), entered March 6, 2013, which denied its motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Summit Business Media, and granted the plaintiffs' cross motion for leave to amend the caption by substituting the names Summit Business Media, LLC, and National Underwriter Company, as successor-in-interest to Summit Business Media, for the defendant Summit Business Media, and for an extension of time to serve the amended summons and complaint upon the defendants Summit Business Media, LLC, and National Underwriter Company.

ORDERED that the order is reversed, on the law, with costs, the appellant's motion is granted, and the plaintiff's cross motion is denied.

On February 23, 2009, the plaintiff Francis R. Honeyman (hereinafter the plaintiff) allegedly was injured while working at the Jacob K. Javits Convention Center during an art exhibition conducted by National Underwriter Company, as successor-in-interest to Summit Business Media, LLC (hereinafter the appellant). On February 17, 2012, the plaintiff, and his wife suing derivatively, commenced this action against, among others, “Summit Business Media,” by filing a summons and complaint with the Queens County Clerk's Office. On May 3, 2012, the plaintiffs purported to serve “Summit Business Media” by delivering copies of the papers to an agent authorized to accept service on behalf of Summit Business Media Holding Company.

In support of its motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against “Summit Business Media,” the appellant's principal averred that Summit Business Media Holding Company, a holding company for a subsidiary holding company which owns the appellant, had forwarded a copy of the complaint to the appellant, and its attorney argued that the plaintiffs had incorrectly commenced this action against the trade name “Summit Business Media.” The plaintiffs cross-moved for leave to amend the summons and complaint to correct the caption by substituting the names “Summit Business Media, LLC, and The National Underwriter Company” for the defendant Summit Business Media, and for an extension of time to serve the amended summons and complaint upon the appellant and Summit Business Media, LLC. The Supreme Court denied the motion and granted the cross motion.

The Supreme Court should have granted the appellant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against “Summit Business Media,” as a trade name is not a jural entity amenable to suit (see Holtzman v. KTB Athletics SB TM,

113 A.D.3d 656, 656, 978 N.Y.S.2d 689 ; Equestrian Assoc. v. Freidus, 192 A.D.2d 572, 574, 595 N.Y.S.2d 984 ; Provosty v. Lydia E. Hall Hosp., 91 A.D.2d 658, 457 N.Y.S.2d 106, affd. 59 N.Y.2d 812, 464 N.Y.S.2d 754, 451 N.E.2d 501 ). In addition, under CPLR 305(c), “an amendment to correct a misnomer will be permitted ‘if the court has acquired jurisdiction over the intended but misnamed defendant...