Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present: HONORABLE CHARLES J. THOMAS   IA Part 13
                      Justice

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                    x                   Index
LU YI                                 : Number 15725 1997
                                     :
      - against -                     : Motion
                                     : Date September 15, 1999

ITT SHERATON CORPORATION s/h/a       :
ITT SHERATON CORP. d/b/a              : Motion
SHERATON LA GUARDIA EAST HOTEL       : Cal. Number 20
                       x

The following papers numbered 1 to 12 read on this motion by plaintiff for leave to amend the summons and complaint pursuant to CPLR 3025(b). Papers

Numbered

Notice of Motion - Affidavits - Exhibits .......... 1 - 3
Affirmation in Opposition - Exhibits .............. 4 - 6
Reply Affirmation ................................. 7 - 9
Sur Reply ........................................ 10 - 12

Upon the foregoing papers it is ordered that the motion is denied.

Plaintiff commenced this personal injury action on June 30, 1997, seeking to recover for injuries he received on July 5, 1994. Plaintiff states that he intended to sue both ITT Sheraton Corporation and Sheraton La Guardia East Hotel as separate entities, but that he mistakenly inserted "d/b/a" in the caption instead of "and." Plaintiff now seeks for the caption to read "Lu Yi v Sheraton La Guardia East Hotel." Defendants assert that Sheraton La Guardia East is a mere trade name with no independent existence, but that the hotel was owned and operated by Cooper Investors, Inc. Defendants submit correspondence which indicates that they explained to plaintiff nearly two years ago, in December 1997, that Cooper Investors was the correct party to be named in the action. It is evident that defendants offered to assist plaintiff in naming the proper entity, but that plaintiff, or his counsel, inexplicably refused. In his reply papers, plaintiff seeks leave to amend the caption yet a third time to read "Lu Yi v ITT Sheraton Corporation d/b/a Sheraton La Guardia East Hotel and Cooper Investors, Inc. d/b/a Sheraton La Guardia East Hotel." Incidentally, on June 30, 1999 this court granted summary judgment to ITT Sheraton Corporation dismissing all of plaintiff's claims against it.

Plaintiff's motion to amend the summons and complaint is denied. In determining whether to allow an amendment pursuant to CPLR 3025(b), the court should consider "how long the amending party was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice would result therefrom." (Mohammed v City of New York, 242 AD2d 321.) From the correspondence submitted by defendants, it is clear that plaintiff has been aware of the existence of Cooper Investors for nearly two years, yet plaintiff provides no credible excuse for the delay in attempting to correct his error. Moreover, it is evident that ITT Sheraton Corporation and Cooper Investors are separate and distinct entities, thus it cannot be maintained that service upon one is tantamount to service upon the other. (Wise v Greenwald, 194 AD2d 850.) Where, as here, a party has been aware from the inception of the action of the facts upon which he bases his present motion, to allow an amendment would clearly prejudice the other party. (Mohammed v City of New York, supra; Wise v Greenwald, supra.)

Dated: ______________________________

J.S.C.