Kinder v. Braunius

• Decision Date: 16 June 2009
• Docket Number: 2008-07904.
• Citation: 63 A.D.3d 885,882 N.Y.S.2d 188,2009 NY Slip Op 05092
• Parties: JACOLYN KINDER, Appellant, v. BRIAN BRAUNIUS, Defendant, and JEFF BRAUNIUS, Respondent.
• Court: New York Supreme Court — Appellate Division

63 A.D.3d 885

882 N.Y.S.2d 188

2009 NY Slip Op 05092

JACOLYN KINDER, Appellant, v. BRIAN BRAUNIUS, Defendant, and JEFF BRAUNIUS, Respondent.

2008-07904.

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

Decided June 16, 2009.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated July 9, 2008, which, inter alia, granted those branches of the motion of the defendant Jeff Braunius which were pursuant to CPLR 306-b to dismiss the complaint, and pursuant to CPLR 3211 (a) (5) to dismiss the purported amended complaint as time-barred, and denied her cross motion, inter alia, to extend the time to serve the summons and complaint and for leave to amend the summons and complaint nunc pro tunc.

Ordered that the order is affirmed, with costs.

On April 4, 2004 the plaintiff allegedly sustained personal injuries when she fell through the floor of a barn owned by the defendant Jeff Braunius (hereinafter Jeff). In February 2007 the plaintiff commenced this action, naming Brian Braunius (hereinafter Brian), a nonexistent person, as the sole defendant. In mid-April 2007, after the statute of limitations had expired (see CPLR 214 [5]), the plaintiff filed what was denominated a supplemental summons and amended verified complaint naming Jeff as a defendant. On July 16, 2007 the defendants allegedly were served with both sets of pleadings by delivery to a person of suitable age and discretion pursuant to CPLR 308 (2). In August 2007 Jeff interposed a verified answer to the purported amended complaint where, inter alia, he asserted the affirmative defenses of lack of personal jurisdiction and that the action was time-barred. In April 2008 Jeff moved pursuant to CPLR 306-b to dismiss the complaint, and, inter alia, pursuant to CPLR 3211 (a) (5) to dismiss the purported amended complaint. The plaintiff cross-moved, inter alia, for an extension of time to serve the summons and complaint and for leave to amend the summons and complaint nunc pro tunc to substitute Jeff as the defendant instead of Brian. The Supreme Court granted those branches of Jeff's motion which were pursuant to CPLR 306-b to dismiss the complaint and pursuant to CPLR 3211 (a) (5) to dismiss the purported amended complaint as time-barred, and denied the plaintiff's cross motion. We affirm.

It is undisputed that the plaintiff incorrectly named Brian, a nonexistent person, as the defendant in the original summons and complaint, and that she failed to serve Jeff within the applicable three-year statute of limitations. Under such circumstances, the naming of a nonexistent person was, in fact, no naming at all (see Maldonado v Maryland Rail Commuter Serv. Admin., 91 NY2d 467, 472 [1998]; Ross v Lan Chile Airlines, 14 AD3d 602, 603 [2005]). The issue here was not improper service, but no service (see ...