Practice point: CPLR 305(c) authorizes the court to "allow any
summons or proof of service of a summons to be amended, if a substantial
right of a party against whom the summons issued is not prejudiced." Where the motion is to cure a misnomer in the
description of a party-defendant, it should be granted even after the
statute of limitations has run where (1) there is evidence that the
correct defendant, misnamed in the original process, was, in fact, properly served, and (2) the correct defendant would not be prejudiced
by granting the amendment.
Student note: While CPLR 305(c) may be used to cure a misnomer in the
description of a party-defendant, it cannot be used after the expiration
of the statute of limitations as a device to add or substitute an
entirely new defendant who was not properly served.
Case: Associated Geriatric Info. Network, Inc. v Split Rock Multi-Care Ctr., LLC, NY Slip Op 07922 (2d Dept. 2013)
Here is the decision.
Tomorrow's issue: A deed conveying real property as security.
