In this action, plaintiffs Margaret Dunbar ("Dunbar") and Carlson Shannon ("Shannon") move for a default judgment against Madison Square Garden, L.P. ("MSG), Cablevision Systems Corporation (Cablevision), Live Nation Worldwide, Inc. and Live Nation Concerts, Inc. (collectively "Live Nation") for failure to interpose an answer to the second amended complaint. The complaint alleges four causes of action, three sounding in negligence and one in intentional tort all of which arose out of an altercation between plaintiffs and other patrons at a Mary J.Blige concert promoted by Live Nation at MSG on July 21, 2006.

All of the defendants cross move to dismiss the complaint on the grounds that (1) the complaint was amended on the second occasion in contravention of CPLR §1003; (2) the statute of limitations has expired as to the second cause of action for false imprisonment; and (3) in the alternative for an order dismissing the complaint against Live Nation pursuant to CPLR §3211(a)(7) for failure to state a cause of action. [*2]

Plaintiffs filed a summons and complaint on April 20, 2007 with the following caption:

MARGARET DUNBAR; CARLSON SHANNON,

Plaintiffs,

-against-

MADISON SQUARE GARDEN, L.P.;SUMMONS

CABLEVISION SYSTEMS CORPORATION

And DOES 1-10 INCLUSIVE

Defendant(s)

On June 19, 2007, plaintiffs filed an amended summons and complaint with the

following caption:

MARGARET DUNBAR; CARLSON SHANNON,

Plaintiffs,

-against-

MADISON SQUARE GARDEN, L.P.;AMENDED

CABLEVISION SYSTEMS CORPORATION;SUMMONS

LIVE NATION;

And DOES 1-10 INCLUSIVE

Defendant(s)

On June 25, 2007, plaintiffs once again amended their complaint with the following

caption:

MARGARET DUNBAR; CARLSON SHANNON,

Plaintiffs,

-against-AMENDED

SUMMONS

MADISON SQUARE GARDEN, L.P.;

CABLEVISION SYSTEMS CORPORATION;

LIVE NATION WORLDWIDE; INC.,

LIVE NATION CONCERTS, INC.

And DOES 1-10 INCLUSIVE

Defendant(s) [*3]

Plaintiffs did not serve the original complaint nor did they serve the amended complaint. The second amended complaint was served on all four defendants by service upon the Secretary of State on July 30, 2007. The plaintiffs did not seek leave of the Court nor did they have a stipulation executed by all parties before they added "Live Nation" to the amended complaint or added the correctly listed "Live Nation Worldwide Inc." and "Live Nation Concerts, Inc." to the second amended complaint. They utilized the same index number for each complaint.

The attorneys for MSG and Cablevision on behalf of their clients executed two stipulations extending their time to appear, answer or move to September 28, 2007 and

October 29, 2007, respectively.

The Court takes notice that the second amended complaint was served within the time period of §306-b. CPLR §306-b provides in relevant part as follows:

Service of the summons and complaint, summons with notice,

third-party summons and complaint, or petition with a notice of

petition or order to show cause shall be made within one hundred

twenty days after the filing of the summons and complaint, summons

with notice, third-party summons and complaint, or petition,

provided that in an action or proceeding...If service is not made

upon a defendant within the time provided in this section, the

court, upon motion, shall dismiss the action without prejudice

as to that defendant, or upon good cause shown or in the interest

of justice, extend the time for service.

The original complaint was filed on April 20, 2007. The second amended complaint was served on July 30, 2007, 100 days after filing of the original summons. With respect to the second cause of action for false imprisonment, the statute of limitations expired on July 20, 2007, one year from the date of the incident. Accordingly, the filing of each of the complaints was made prior to July 20, 2007 and within the statute of limitations period for the second cause of action. However, the Court needs to review the requirements of CPLR §1003 as they impact this case

All the defendants argue that the complaint must be dismissed because the second amended complaint was amended without leave of the Court or by stipulation between the parties. They argue that "the only complaint served upon the defendants, is a nullity since it fails to comply with CPLR § 1003." They rely on Yadegar v International Food Market, 306 AD2d 526 [2d Dept. 2003].

The Court notes that each complaint contains the identical forty-four (44) paragraphs setting forth four causes of action. The amended and second amended complaints add two paragraphs relating to the addition of Live Nation.

With respect to the application to dismiss MSG and Cablevision, they were the original defendants named in the complaint filed on April 20, 2007. As noted, they were both served within the requirements of CPLR § 306-b. Plaintiffs had the right to amend the first time without leave of Court or by stipulation between the parties.. The amended complaint which added "Live Nation" was proper and in compliance with CPLR § 1003. The question is whether the service [*4]of the second amended complaint is a nullity as it relates to MSG and Cablevision because of the addition of the two Live Nation correctly named corporate entities.

Generally, unless there is a waiver, the failure to obtain leave to add a party is a jurisdictional bar against the parties so joined. (Clair v Brookdale Hosp. Med. Ctr., 259 AD2d 586 [2d Dept., 1999].) The new party named may seek dismissal, not the original defendants in the case. (Dauernheim v Lendlease Cars, 202 AD2d 624 [2d Dept. 1994]; Crook v duPont de Nemours Co., 181 AD2d 1039 [14th Dept. 1992].)

Accordingly, MSG and Cablevision's motion to dismiss pursuant to CPLR § 1003 is denied as they have no standing to object to the adding of the additional party.

We now consider the application of Live Nation Worldwide and Live Concerts to dismiss pursuant to CPLR § 1003. As previously noted, plaintiffs had the right without leave of the Court to file the amended complaint since plaintiffs had not served the original complaint and thus no parties time to answer had run.

Accordingly, the amended complaint which added "Live Nation" was properly filed.

The Court takes note that the only change in the second amended complaint is to list the correct corporate name for Live Nation Worldwide, Inc. and Live Nation Concerts, Inc. The affidavit submitted by Richard A. Munisteri, Esq., Associate General Counsel of Live Nation Worldwide, Inc., lists this as the correct corporate name and identifies Live Nation Concerts, Inc. as being "its subsidiaries and affiliates". Mr. Munisteri identifies both collectively as "Live Nation".

As such, the Court takes notice that the listing of "Live Nation" as a party defendant while not the correct corporate name sufficiently identifies the party being sued. The Live Nation web site utilizes "Live Nation" without any further corporate identification on its home page. Accordingly, the Court finds that the amended complaint which was filed as of right properly added Live Nation even though their correct corporate name wasn't listed.

The Court accepts the filing of the second amended complaint nunc pro tunc simply for the purposes of correcting and adding the correct corporate name. (Foler v Chase Manhattan Banking Corp., 212 AD2d 448 [1st Dept. 1995]; Simpson v Kensington Warehouse Corp., 154 AD2d 526 [2nd Dept. 1985].)The defendant Live Nation may not assert any prejudice as the second amended complaint is identical to the as of right amended complaint. The Court finds it did not add parties in contravention of CPLR § 1003, it simply correctly listed the corporate names of a party added as of right by the amended complaint.

Further, the Court will deem the plaintiffs' motion as a motion to amend the summons and complaint pursuant to CPLR 305(c) to name the proper corporate defendant. A motion to amend

the summons and complaint to reflect the proper name of the defendant should be granted even after the statute of limitations has run, where (1) there is evidence the correct defendant (misnamed in original process) has in fact been served, and (2) the correct defendant would not be prejudiced by granting the amendment sought. (Baldernan v Capital City/American Broadcasting Co. Inc., 223 AD2d 861 [4th Dept 1996]; Ober v Rye Town Hilton, 159 AD2d 16 [2nd Dept. 1992].)

Accordingly, the motion of Live Nation to dismiss based on CPLR § 1003 is denied. [*5]

We now turn to Live Nations' motion to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action or alternatively pursuant to CPLR § 3211(c) to convert the motion to a motion for summary judgment.

With respect to the CPLR § 3211((a)(7) motion, the Court is required to treat all allegations of the complaint as true. (Mannon v Mannno 249 AD2d 372 [2nd Dept 1998]; DiMicco Bros v Con Ed 8 AD3rd 99 [1st Dept. 2004].) Under this standard, the complaint adequately states a cause of action against Live Nation. With respect to the request to treat the dismissal motion as a motion for summary judgment pursuant to CPLR § 3211(c), the Court declines to do so. Even if it were to be considered as such, the conclusory affidavit submitted by Live Nation is deficient on its face as no where does it state that the affiant has personal knowledge of the events which form the basis of the lawsuit.

With respect to plaintiffs' motion for a default judgment, the Court, nunc pro tunc, extends the time of all of the defendants to answer or move to December 18, 2007, the date the dismissal motions were made. It is the public policy of this State to have cases litigated on the merits particularly where any brief delays do not lead to prejudice. Defendants were uncertain of the procedures employed by plaintiffs in amending the complaint and any technical default is excused. (Albano v Nus Holding Corp., 233 AD2d 280 [2nd Dept. 1996]; D'Aquila v Machena, 37 AD3d 398 [2nd Dept. 2007]; Jolkovsky v Legeman, 32 AD3d 418 [2nd Dept. 2006]; Bunch v Dollar Budget, Inc., 12 AD3rd 391 [2nd Dept. 2004].)

Accordingly, plaintiffs' motion for a default judgment is denied and the cross-motions of all defendants are denied. All defendants are directed to file their answers to the second amended complaint dated June 17, 2007 within twenty (20) days of service of notice of entry of this order.

This constitutes the decision and order of the Court.

E N T E R,

__________________________________________

ROBERT J. MILLER

Justice