Simpson v. Kenston Warehousing Corp.
| Decision Date | 16 October 1989 |
| Citation | 154 A.D.2d 526,546 N.Y.S.2d 148 |
| Parties | William J. SIMPSON, et al., Plaintiffs-Respondents, v. KENSTON WAREHOUSING CORP., Respondent-Appellant, et al., Defendant; Kenston Trucking Co., Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Leonard Lorin, Brooklyn, for appellant.
William J. Croutier & Associates, Garden City (Congdon, Flaherty, O'Callaghan, Reid & Donlon [Morris Zweibel and Carla C. Leone] of counsel), for respondent-appellant.
Stewart, Stewart, Sachman & Upton, Greelawn (William J. Upton of counsel), for plaintiffs-respondents.
Before THOMPSON, J.P., and BRACKEN, KUNZEMAN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., Kenston Trucking Co., Inc., appeals, (1) as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated January 27, 1988, as granted the plaintiffs' motion to amend their summons and complaint to substitute it as a party defendant in the place and stead of Kenston Warehousing Corp., and (2) from an order of the same court entered June 2, 1988, which denied its motion for reargument of the prior motion. Kenston Warehousing Corp. separately appeals from the order dated January 27, 1988.
ORDERED that the respondents are awarded one bill of costs, payable by Kenston Trucking Co., Inc..
The plaintiff commenced this action by naming Kenston Warehousing Corp., rather than Kenston Trucking Co., Inc., as a defendant. The summons and complaint were served upon John Luhrs, who is the sole shareholder and officer of both corporations. Where the summons and complaint have been served under a misnomer upon the party which the plaintiff intended as the defendant, an amendment will be permitted if the court has acquired jurisdiction over the intended but misnamed defendant provided that two criteria are met. The first criterion is that the intended but misnamed defendant was fairly apprised that it was the party the action was intended to affect. The second criterion is that the intended but misnamed defendant...
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