Opiela v. May Industries Corp.

Aug 26, 2004
Versions:10 A.D.3d 340
781 N.Y.S.2d 353
2004 N.Y. App. Div. LEXIS 10394

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered May 23, 2003, which granted defendants-respondents’ motions to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff was injured when he was struck by a piece of metal that fell from a construction area at the Central Terminal Building at LaGuardia Airport. A condition for commencing an action against an unknown party (CPLR 1024) is that the plaintiff demonstrate he or she made a genuine effort to ascertain, in a timely manner, the identity of the defendants prior to expiration of the statute of limitations (Tucker v Lorieo, 291 AD2d 261 [2002]). While plaintiffs own efforts to identify the actual defendants responsible for erecting the construction canopy resulted in inaccurate information, he could have obtained the contractors’ names before expiration of the three-year limitations period. Indeed, the statute was tolled for an additional 120 days after commencement of the action by filing (CPLR 306-b). Nevertheless, nearly two years passed before plaintiff moved to amend his complaint to add respondents as new parties defendant. Furthermore, plaintiff failed to demonstrate that respondents were in any way united in interest with the originally named defendants (CPLR 203 [b]; see Scoma v Doe, 2 AD3d 432 [2003]).

A plaintiff may amend a complaint to reflect the true names of the defendants in question, but only where such parties were fairly apprised that they are the intended defendants and are not prejudiced thereby (see ICD Group Intl. Ltd. v Achidov, 284 AD2d 244 [2001]). The allegations in the complaint were insufficient to advise defendants-respondents that they were the intended subjects of plaintiffs lawsuit. Denial of an extension of time for service was, under these circumstances, a proper exercise of the court’s discretion (cf. Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101, 107 [2001]). Concur—Tom, J.P., Saxe, Ellerin, Williams and Gonzalez, JJ.