Rivera v. Beer Garden, Inc., 51 A.D.3d 479 (N.Y. App. Div. 1st Dep't 2008). · Go Syfert
Rivera v. Beer Garden, Inc., 51 A.D.3d 479 (N.Y. App. Div. 1st Dep't 2008). Cases Citing This Book View Copy Cite
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  • MVP Health Ins. v. Enigma Diagnostic Corp., 111 A.D.3d 990 (N.Y. App. Div. 3d Dep't 2013).published 2 cites
    Rivera v Beer Garden, Inc., 51 AD3d 479, 479 [2008]; Rodriguez v Dixie N.Y.C., Inc., 26 AD3d 199, 200 [2006]; Connor v Fish, 91 AD2d 744, 744-745 [1982]).
Retrieving the full opinion text from the archive…
Felix Rivera
v.
The Beer Garden, Inc., Doing Business as The Roxy
Appellate Division of the Supreme Court of the State of New York.
May 8, 2008.
Published opinion
51 A.D.3d 479
Cited by 4 opinions  |  Published

Order, Supreme Court, New York County (Carol Edmead, J.), entered April 12, 2007, which denied defendant’s motion to dismiss the complaint as time-barred and granted plaintiffs cross motion to the extent of amending the caption and authorizing service of the amended summons and complaint nunc pro tunc, unanimously affirmed, without costs.

Plaintiff was injured in August 2002 at a nightclub popularly known as the Roxy. The summons and complaint were filed in May 2005, within the applicable three-year statute of limitations for personal injury, but misnamed the Roxy Roller Rink, Inc. as the defendant. Alerted to its mistake, in September 2005 plaintiff effected service of the original summons and a supplemental summons and amended complaint on defendant.

We reject Beer Garden’s argument that the action is time-barred as against it because the supplemental summons and amended complaint naming it was not filed until after the statute of limitations had run. The original summons and complaint were timely filed. Leave to amend to correct defendant’s name was properly granted, even after the statute of limitations had run, because of evidence that defendant, who was aware it was the intended defendant, had in fact been served and would not be prejudiced by granting the amendment (CPLR 305 [c]; Manocchio v Wohlfeil, 206 AD2d 908 [1994]). Concur—Lippman, P.J., Mazzarelli, Sweeny, Moskowitz and Renwick, JJ.