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Orthopaedic Specialists of Greater NY, P.C. v Kemper Independence Ins. Co.
2014 NY Slip Op 51683(U) [45 Misc 3d 133(A)]
Decided on December 1, 2014
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 1, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570574/14

Orthopaedic Specialists of Greater New York, P.C. a/a/o Nancy Goris, Plaintiff-Respondent, -

against

Kemper Independence Ins. Co., Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered January 22, 2013, which denied its motion to dismiss the complaint and granted plaintiff's cross motion to amend the caption to reflect the proper name of plaintiff.

Per Curiam.

Order (Gerald Lebovits), entered January 22, 2013, affirmed, with $10 costs.

Defendant's motion to dismiss the complaint was properly denied and the cross motion to amend the caption of the summons and complaint to designate plaintiff as "Orthopaedic Specialists of Greater New York, P.C. a/a/o Nancy Goris," was properly granted. Plaintiff established that "the right party plaintiff [was] in court but under a defective name" (Covino v Alside Aluminum Supply Co., 42 AD2d 77, 80 [1973]) and defendant failed to establish any prejudice from the misnomer. Thus, plaintiff was properly permitted to amend the caption to reflect its true name (see CPLR 2001; Unique Laundry Corp. v. Hudson Park NY LLC, 55 AD3d 382 [2008; Homemakers, Inc., of Long Island v. Williams, 100 AD2d 505, 507 [1984]). Nor has defendant demonstrated that discovery on the issue of plaintiff's corporate name is material and necessary to its defense of this action.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur

Decision Date: December 01, 2014