Lezell v. Forde - 2009 NY Slip Op 29411, 26 Misc. 3d 435, 891 N.Y.S.2d 606 (Sup. Ct.)

Rule:

There is no provision of the Civil Practice Law and Rules or Uniform Rules, 22 NYCRR pt. 202, that provides for amendment of a caption. Rather, the designation of the parties is determined by the allegations of the complaint, which may be amended pursuant to CPLR 3025. The distinction is not merely technical or academic.

Facts:

Plaintiff buyers under a contract for sale of a cooperative apartment sued defendant seller, seeking, inter alia, specific performance of the contract. The buyers moved to amend the caption of the complaint to reflect the correct legal name of a co-plaintiff, presumably, pursuant to CPLR 3025. The buyers, however, failed to file a proposed amended summons and complaint. The buyers further moved for summary judgment, and moved for a preliminary injunction barring and prohibiting the seller from disposing, conveying, mortgaging, or otherwise encumbering the real property.

Issue:

Under the circumstances, should the plaintiffs’ motion be granted? 

Answer:

No.

Conclusion:

The court held that the plaintiffs were not entitled to amend the caption of their action, as there was no provision of the CPLR or applicable court rules that provided for the amendment of a caption. Rather, the designation of the parties was determined by the allegations of the complaint, which may be amended pursuant to CPLR 3025. Moreover, a motion to amend a pleading must be accompanied by the proposed amended pleading, and plaintiffs failed to provide a proposed amended summons and complaint. The court also denied the plaintiffs’ motion for summary judgment, as the motion was not accompanied by a complete copy of the pleadings as required by CPLR 3212(b). The buyers failed to include a copy of the proprietary lease that they asked be transferred to them, and thus their summary judgment motion for specific performance as to the lease failed. There was no prayer for relief for a permanent injunction in any way barring the seller from dealing with his interest in the apartment, and, thus, the second situation described in CPLR 6301 was inapposite. The complaint also contained no allegation as to the "uniqueness" of the apartment or as to the inadequacy of a remedy at law or irreparable injury. Affidavits submitted asserted that the property was unique, valuable, and irreplaceable, but no other facts were alleged, and no other evidence was offered to support those conclusions or that suitable alternatives were not available. The buyers thus failed to demonstrate a likelihood of success on the merits of their specific performance or irreparable injury claims.