Justin v. Orshan
788 N.Y.S.2d 407
N.Y. App. Div.
2005
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EREIN JUSTIN, Appellant, v STEVEN ORSHAN, Respondent, et al., Defendants. ARTHUR TRUST, Nonparty Respondent.

Supreme Court, Appellate Division, Second Department, New York

788 N.Y.S.2d 407

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated April 14, 2003, as denied her motion for leave to amend the complaint to add Arthur Trust as an additional defendant, serve a supplemental summons and amended verified complaint, and amend the caption of this action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff‘s contention that CPLR 1024 applies under the circumstances of this case was improperly raised for the first time in her reply papers (see ; ) and, in any event, is without merit. In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made “timely efforts to identify the correct party before the statute of limitations expired” (; see ). Here, the plaintiff failed to make such a showing. Further, the description in the complaint was insufficient to fairly apprise Arthur Trust, the proposed additional defendant, that he was the intended defendant (see ; Alexander, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 7B, CPLR 1024, at 249-250).

The plaintiff‘s remaining contentions are without merit.

Schmidt, J.P., Santucci, Luciano and Rivera, JJ., concur.