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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 10, 2019

Plaintiff Allowed to Correct Caption When It Mistakenly Sued Under Incorrect Name

On January 4, 2019, Justice Masley of the New York County Commercial Division issued a decision in Latin Mkts. Brazil, LLC v. Salsinha, 2019 NY Slip Op. 30201(U), allowing a plaintiff to correct a case caption when the plaintiff mistakenly sued under the incorrect name, explaining:

Defendant objects to the original plaintiff Markets Group, Inc. as an improper plaintiff. However, Markets Group, Inc. is not a party to the Employment Agreement, and thus, has no standing to sue in this action. Defendant objects to Latin Markets’ attempted cure of its lack of standing by changing Markets Group, Inc. in the original complaint to Latin Markets Brazil, LLC D/B/A Markets Group in the Amended Complaint. Defendant contends that this substitution is not proper without leave of this Court. In opposition, Latin Markets claimed at Oral Argument on September 25, 2018 that the caption in the original complaint is a typographical error, and it timely amended under CPLR 3025 as a matter of right.

Misnomers may be remedied by amending the caption so long as the parties are fairly apprised of the misnomer and are not prejudiced. In the context of misnomers, amendment of the caption does not amount to a change in parties. Markets Group is the assumed name of Latin Markets according to a certificate issued by the New York State Department of State Division of Corporations. Latin Markets also submits the affidavit of its Chief Executive Officer who states that Markets Group is the assumed name of Latin Markets. Furthermore, Defendant has not shown how it was prejudiced by this misnomer. Defendants argument that Latin Markets’ amendment was improper is belied by the very case Defendant cites insofar as that court explicitly stated that amending the caption was improper because it did not involve the correction of a mere misnomer. While a motion to amend is good practice, given the convoluted procedural posture of this case, the amendment was timely. Accordingly. dismissal on the grounds that Plaintiff lacks standing is denied.

(Internal quotations and citations omitted).

This decision shows that sometimes (but not always) a court will excuse mistakes, but there must be a reasonable explanation for the failure. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have made a mistake that you want a court to fix.

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