Vandermallie v. Liebeck

Memorandum: Supreme Court improvidently exercised its discretion in granting plaintiff’s motion for leave to serve an amended summons and complaint pursuant to CPLR 305 (c) and 3025. CPLR 305 (c) authorizes amendment of the caption of the pleadings to reflect the correct name of an existing defendant, not to add a new defendant (see, Potamianos v Convenient Food Mart, 197 AD2d 734, 735). An amendment pursuant to that section is authorized only where "(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct…