Perez v. City of New York

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 20, 2009, which, in an action for personal injuries against the City of New York, denied plaintiffs’ motion to restore the action to active status and for leave to amend the summons and complaint so as to substitute the New York City Department of Education as the only defendant, unanimously affirmed, without costs.

The motion court correctly held that it was without jurisdiction to entertain the motion when the action had already been dismissed by order of this Court precisely because plaintiff sued the City instead of the Department (41 AD3d -378 [2007], lv denied 10 NY3d 708 [2008]). In any event, we reject plaintiffs present argument that the circumstances, including the naming of the Department as well the City in the notice of claim, show that the naming of only the City in the summons was a nonprejudicial misnomer that is correctable under CPLR 305 (c). Concur—Gonzalez, P.J., Andrias, Catterson. Renwick and Manzanet-Daniels, JJ.