Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Upon oral arguments on October 1, 2024, and the foregoing cited papers, the Decision/ Order on Defendant's motion to dismiss is DENIED in part and GRANTED in part for the following reasons:

Defendant appeared through counsel and Plaintiff appeared unrepresented. Defendant argued to dismiss Plaintiff's complaint on the grounds of failure to (i) provide accurate and complete responses to Defendant's Demand for a Verified Bill of Particulars under CPLR § 3126(3); (ii) name a proper party and serve a necessary party under CPLR § 3211(a)(10); and (iii) state a cause of action under CPLR § 3211(a)(7). Plaintiff opposed and Defendant replied.

I. DEFENDANT'S DEMAND FOR A VERIFIED BILL OF PARTICULARS

Defendant argues that Plaintiff failed to comply with answering Defendant's Demand for a Verified Bill of Particulars and wants the court to dismiss the case against them.

CPLR § 3126(3) states that anyone in a lawsuit who "refuses to obey an order for disclosure or willfully fails to disclose information the court may make such orders with [*2]regard to the failure or refusal as are just, among them: 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party." Nevertheless, public policy strongly favors the resolution of cases on their merits and the drastic remedies of striking a pleading or precluding evidence are not appropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious. Gelin v. New York City Tr. Auth., 189 AD3d 789 (2nd Dept., 2020).

Plaintiff argues she has been responsive to Defendant's Demand for a Verified Bill of Particulars. In addition, Plaintiff's opposition states that Defendant has "consistently failed to disclose critical information that is essential to the fair adjudication of this matter ." and cross-moves for sanctions against Defendant. See Page 4 of 5 of Plaintiff's Opposition.

The court finds that neither Plaintiff nor Defendant's conduct in the production of information was willful or contumacious. Therefore, the court will not impose sanctions against Defendants, nor dismiss or strike Plaintiff's pleadings. However, the court will issue an order compelling further production of documents by both sides to the extent necessary to prepare for trial.

II. FAILURE TO NAME A PROPER PARTY AND SERVE A NECESSARY PARTY

Defendant further argues that Plaintiff mis-named Defendant as Marcus Garvey Village and therefore Plaintiff's case should be dismissed because Marcus Garvey Village is not a legal entity. Defendant presented competent evidence to the court in the form of an affirmation of Catherine Smalling stating that Defendant is not known as Marcus Garvey Village and is correctly named and located at 422 Chester St., Apt. B, Brooklyn, NY 11212. Although the proper name was not disclosed in its moving papers, Defendant's counsel stated on the record that defendant's legal name is Marcus Garvey Preservation, LLC. Plaintiff argued that she only knows Defendant as Marcus Garvey Village based on signage in front of Defendant's building.

Although Plaintiff did not move the court to amend the caption, the court can sua sponte amend the caption. It is well-settled law that CPLR § 2001 gives the court broad discretion and the power to correct mistakes, omissions, defects or irregularities in court papers at any stage of the case, including during the filing of the complaint. Absent a complete failure to file the initial papers necessary to institute an action, the court has the broad discretion and power to correct errors in the caption. See CPLR § 2001; O'Brien v Contreras, 126 AD3d 958 (2nd Dept., 2015).

Moreover, CPLR § 305(c) states in pertinent part that "[a]t any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced." The Second Department has held that "[w]here the motion is to cure 'a misnomer in the description of a party,' it should be granted even if the statute of limitations has run where '(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought.'" New Found., LLC v Ademi, 140 AD3d 1038 (2nd Dept., 2016), citing, Ober v Rye Town Hilton, 159 AD2d 16 (2nd Dept., 1990). See also, Potamianos v Convenient Food Mart, 197 AD2d 734, (3rd Dept., 1993) (The purpose of CPLR § 305(c) amendment is to correct the misnaming of an existing defendant, not to add a new defendant).

Here, Plaintiff's affidavit of service of the summons, notarized on August 28, 2023, states service was effectuated on Alexis Thyter, in care of, Catherine Smalling, the assistant manager [*3]of "Marcus Garvey Village, LLC" and Catherine Smalling is the same person that signed the affidavit attached to Defendant's moving papers. The court finds that notwithstanding the error, the correct defendant was apprised of this proceeding, it was the party intended to be named, service was proper, and Defendant would not be prejudiced by the amendment. Consequently, Defendant's motion to dismiss the complaint on this ground is denied.

III. FAILURE TO STATE A CAUSE OF ACTION

Finally, Defendant moves to dismiss the complaint as it argues that Plaintiff failed to state a cause of action pursuant to CPLR § 3211(a)(7). Defendant argues that Plaintiff cannot prove that the fire in her apartment was caused by Defendant's actions or negligence and therefore her case must be dismissed. Plaintiff argues that there have been ongoing issues with the heating system in her apartment, including a previous fire and NYC Department of Buildings violations. Defendant countered that Plaintiff's drapery caused or contributed to the fire and cites to the most recent Incident Report findings. The court notes that these are issues for the trier of fact. If Plaintiff's drapery was indeed a contributing factor as Defendant intimates, then that may have spread the fire and acted as a mitigating factor as to damages but not a detractor of Defendant's liability. See Garcia v Tri-County Ambulette Serv., 282 AD2d 206 (1st Dept., 2001); see also, Davis v Turner, 132 AD3d 603 (1st Dept., 2015). The issue of what caused the fire is an issue of fact for trial.

Consequently, Defendant's motion to dismiss is DENIED in part and GRANTED in part.

Based on the foregoing, it is hereby,

ORDERED, that the parties are to provide more accurate responses to their respective Demand for Discovery and/or Verified Bill of Particulars within 45 days of this order; and it is further

ORDERED, that Plaintiff and Defendant are ordered to exchange all documents to be relied upon at trial of this action, including the names and addresses of any witnesses who will testify for them at trial within 45 days of this order; and it is further

ORDERED, that the Clerk of the Court will amend the caption to reflect: "LaQuana Chappelle v. Marcus Garvey Preservation, LLC," with Defendant's address as 422 Chester St. Apt. B, Brooklyn, NY 11212; and it is further

ORDERED, that the parties are directed to appear on December 2, 2024, at 11 A.M. in Room 1102 at the courthouse located at 141 Livingston Street, Brooklyn, NY 11201, for a pre-trial conference.

This constitutes the decision and order of the court.