In a February 9, 2012 decision by Justice Demarest, the court granted a defendant’s motion to vacate an order finding it in default and granted plaintiffs’ cross motion to amend to modify the caption and assert additional claims against that same party – but denied that defendant’s motion to dismiss. The dispute arose from a construction project. Defendant “T.I.A. of New York, Inc.” (“TIA”) supplied a dumpster to the project. The project was derailed, leaving TIA’s dumpster overflowing with garbage, located behind a large hole in the ground which allegedly making it impossible for TIA to remove the dumpster.
In their complaint plaintiffs originally named TIA as “TIA Rubbish Removal” (not its legal name). TIA was allegedly served through “affix and mail” service. When TIA did not appear plaintiffs obtained an order finding TIA in default. Shortly thereafter TIA appeared by counsel who filed a “Notice of Appearance” but did not file an answer to the complaint, bring a motion, or otherwise raise the defective service (affix and mail service is inapplicable to corporations). The Court found that this appearance “waived TIA’s objection to the propriety of service and th[e] court’s personal jurisdiction over it.” The Court nevertheless granted TIA’s motion to vacate the order finding it in default because TIA raised a reasonable excuse for its default and stated a potentially meritorious defense to plaintiffs’ claims. The Court also considered TIA’s other arguments that the claims against it should be dismissed because plaintiffs failed to properly name TIA before the expiration of the statute of limitations and found those arguments unpersuasive because TIA was not prejudiced by the misnomer. In addition, the Court allowed plaintiffs to amend their complaint to correct TIA’s name and allege additional causes of action against TIA finding there, too, that TIA would not be prejudiced by the amendments and the stated claims are not devoid of merit.
Frederic and Ade v Israel et al., Sup Ct, Kings County, February 9, 2012, Demarest, J, Index No. 20290/06.