___ AD3d___, 2015 NY Slip Op 02107
The summons and complaint in this race-discrimination action mistakenly named Rooftop Lounge, LLC, as a defendant, instead of the correct entity, 230FA, LLC. It appears, although the brief Appellate Division opinion doesn’t explicitly say so, that the limitations period had expired before the error was noticed.
The path to correction of this error is CPLR 305 (c), which allows amendment of a summons so long as none of the defendant’s substantial rights are prejudiced. Where, as here, the proper entity has been misnamed in the summons, but has in fact been properly served with it and there is no prejudice, the misnomer may be corrected even after the limitations period has expired. The circumstances must be such that the proper entity could not have been misled by the misnomer as to who or what was actually being sued.
Where the summons and complaint were served on the wrong entity, there is no personal jurisdiction over the correct entity that will allow the correction (Ingenito v Grumman Corp., 192 AD2d 509). If the limitations period has expired, there may be no way to cure the defect. CPLR 205 (a) would not help, since no timely action was commenced against the proper defendant.
Here, the correct entity was served with the summons and complaint within the limitations period, and there was no prejudice. The amendment to reflect the defendant’s actual name was therefore properly allowed.