Supreme Court, Kings County

Decided on May 29, 2026

Index No. 540706/2025

Aaron D. Maslow, J.

[*1]

The following numbered papers were used on this motion: NYSCEF Document Numbers 18-47, 49-53.

Upon the foregoing papers, having heard oral argument and, due deliberation having been had, it is hereby ORDERED as follows:

The complaint in this action alleged that on November 19, 2022, while a tenant of defendant Courtyard by Marriott New York Manhattan/Midtown East, located at 866 Third Avenue, in Manhattan, the plaintiff sustained personal injuries in an accident proximately caused by actions of the defendants. The complaint alleged that the various defendants owned, operated, managed, controlled, maintained, and repaired the subject premises. Five causes of action were alleged. In paragraphs 105, 115, 120, and 131 of the complaint, the plaintiff was referred to as an infant.

Answers to the complaint were filed by Defendants Diamondrock Manhattan/Midtown East Owner, LLC and Diamondrock Manhattan/Midtown East Tenant, LLC, and The Witkoff Group LLC.

In Motion Sequence No. 1, defendant JEMB Realty moves on a pre-answer basis pursuant to CPLR 3211 (a) (1), (3), and (7), to dismiss the complaint, on the asserted grounds that it does not own the premises, there is a failure to state a cause of action, and, as an infant, the plaintiff lacks the capacity to sue.

In Motion Sequence No. 2, defendants Diamondrock Manhattan/Midtown East Owner, LLC and Diamondrock Manhattan/Midtown East Tenant, LLC cross-move pursuant to CPLR 3211 (a) (3), to dismiss the complaint on the asserted ground that as an infant, the plaintiff lacks the capacity to sue.

Plaintiff contends that even if JEMB Realty did not own the premises at the time of the accident, it is also alleged that it operated, managed, controlled, maintained, and repaired the subject premises. Co-defendants Diamondrock Manhattan/Midtown East Owner, LLC and Diamondrock Manhattan/Midtown East Tenant, LLC essentially make the same argument in opposition to the branches of JEMB Realty's motion premised on lack of ownership.

Moving defendants JEMB and Diamondrock Manhattan/Midtown East Owner, LLC and Diamondrock Manhattan/Midtown East Tenant, LLC note that the plaintiff is described in the complaint as an infant and, as the only plaintiff, he lacks capacity to sue. Diamondrock Manhattan/Midtown East Owner, LLC and Diamondrock Manhattan/Midtown East Tenant, LLC seek to have the Court deem their answer to include the affirmative defense of lack of legal capacity to sue.

The plaintiff, through counsel, addresses the issue of his being described as an infant, by conceding that had the plaintiff been an infant there would be lack of standing. The description of the plaintiff as an infant was "erroneous" (NYSCEF Doc No. 40, Richman aff ¶ 20). "[T]he plaintiff was born in 1992. Thus, he was an adult with capacity to sue at the time of his accident and at the time of the commencement of this action. The plaintiff is willing to submit to in camera inspection of his identifying documents to establish his age. Given that the plaintiff is not an infant and has capacity to sue, it is respectfully submitted that the defendants' motions pursuant to CPLR 3211(a)(3) should be denied, and the court should direct that the complaint be amended to remove the erroneous information (see MacCaull ex rel. MacCaull v Brown, 261 AD2d 829) [underlining in original]." (Id.)

In MacCaull v Brown (261 AD2d 829, 829-830 [4th Dept]), the Court held as follows:

Supreme Court properly denied that part of defendant's motion seeking to dismiss the complaint on the ground of lack of legal capacity to sue (see, CPLR 3211 [a] [3]). Although Eric J. MacCaull was 18 years old at the time of the incident and commencement of the action and thus misdescribed in the caption of the complaint as "an infant", the court did not err in directing that the caption of the complaint be amended to delete the name of his mother, who sued in her representative capacity as a parent, and to reflect that Eric is the sole plaintiff.

The court properly concluded that reference to Eric as an infant was a mistake, that there was no question that Eric was the sole injured party, and that the misdescription constituted a mere irregularity. Additionally, although not raised by plaintiff, we note that defendant waived his right to assert lack of legal capacity to sue as a basis for dismissal by failing to seek preanswer dismissal of the complaint on that ground and by failing to assert that defense in his answer (see, CPLR 3211 [e]; City of New York v State of New York, 86 NY2d 286, 292).

A misnomer in a caption describing the plaintiff as an infant in an action where the plaintiff was an infant at the time of the subject accident but later on achieved the age of majority "can be corrected by amendment without prejudice to the defendants" (Clark v Bilt-Rite Land Corp., 82 Misc 2d 1026, 1027 [Sup Ct, Orange County 1975]). The misnomer of describing the plaintiff as a corporation where in actuality it was an independent entity may be corrected through an amendment (see Bata Nat. Corp. v Bata Shoe Co., 86 NYS2d 587 [Sup Ct, NY County 1949], affd 276 AD 896 [1st Dept 1950] [determined under Civil Practice Act, which permitted mistake, omission, irregularity, or defect to be corrected]).

Since the MacCaull decision was in memorandum form, the particular facts are not described. This Court would have been interested in ascertaining how it was established before the Supreme Court that the plaintiff was 18 years old at the time of the incident. In the case at bar, the plaintiff's counsel sought to present to the Court purported documentary evidence of the plaintiff being of majority age, but the Court declined to view it. The Court is of the opinion that evidence of the plaintiff's majority should have been included in the responsive papers to the motions: "Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct" (CPLR 2214 [c]). Uniform Civil Rules for Supreme & County Courts § 202.8 (a) requires that "all papers shall be filed with the court on or before the return date."

Here, the plaintiff's counsel's affirmation submitted to the Court in opposition to the motions stated conclusorily that the plaintiff was an adult. Counsel did not attach supporting documentation nor did counsel set forth the basis for that statement. The phrase, "identifying documents to establish his age" (NYSCEF Doc No. 40, Richman aff ¶ 20), was not particularized as to what documents were to be submitted; they should have been identified to the defendants. While at the outset of counsel's affirmation it stated, "I am familiar with the facts, and all of the proceedings had herein by reviewing the files maintained in our office" [*2](NYSCEF Doc No. 40, Richman aff ¶ 1), there was no indication that counsel possessed personal familiarity with the plaintiff's age status.

It is also noted that an attorney signed the complaint which included the references to the plaintiff being an infant (see NYSCEF Doc No. 20, complaint at 22). Therefore, the Court presumes that reasonable inquiry was made of the facts alleged in the complaint (see 22 NYCRR § 130-1.1-a).

Without there being proper evidence before the Court establishing that the plaintiff is not an infant, the Court is constrained to grant both motions to dismiss the complaint on the ground that the plaintiff lacks capacity to sue, pursuant to CPLR 3211 (a) (3).^FN1 Since capacity to sue involves standing to maintain the action against any of the defendants, the Court grants this relief even in the absence of motions by the non-moving defendants.

In any event, dismissal on the ground of lack of capacity to sue is not a dismissal on the merits and, therefore, the plaintiff may commence a new action within six months of the dismissal pursuant to CPLR 205 (a) if indeed he is of majority age (see Carrick v Central Gen. Hosp., 51 NY2d 242 [1980]; George v Mt. Sinai Hosp., 47 NY2d 170 [1979]; Estate of Moore v Nassau Operating Co., LLC, 245 AD3d 798 [2d Dept 2026]; Tumminia v Staten Is. Univ. Hosp., 241 AD3d 17 [2d Dept 2025]; Robles v Brooklyn-Queens Nursing Home, Inc., 131 AD3d 1032 [2d Dept 2015]; see also Sullivan v Nimmagadda, 63 AD3d 908 [2d Dept 2009] [dismissal for failure to state cause of action]).

The branches of defendant JEMB Realty's motion seeking dismissal on grounds unrelated to the issue of capacity to sue are found to be without merit inasmuch as the complaint alleged that it operated, managed, controlled, maintained, and repaired the subject premises — not just owned it (see Phillips v Taco Bell Corp., 152 AD3d 806 [2d Dept 2017]). The court must accept the facts as alleged by the plaintiff as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see IntegrateNYC, Inc. v State of NY, 45 NY3d 176, 2025 NY Slip Op 05870, *2 [2025]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Accordingly, the within motion of defendant JEMB Realty and the cross-motion of defendants Diamondrock Manhattan/Midtown East Owner, LLC and Diamondrock Manhattan/Midtown East Tenant, LLC are granted. The complaint is dismissed as to all defendants, with leave being granted to the plaintiff to recommence pursuant to CPLR 205 (a) if he is of majority age.