Wendover Fin. Servs. v Ridgeway, 2012 NY Slip Op 01884 (4th Dept. 2012)
I like when I receive a motion from Mr. Five Boro looking to change the caption to Senor (how do I get the spanish n with a tilda on the computer?) Allboro. Those motions, obviously made to save the $45 index number fee, are always defective. Quite a few judges acquiesce to it. The Fourth Department, however, is not impressed.
“Further, we conclude that the caption may not be properly amended pursuant to CPLR 305 (c). “That provision is generally used to correct an irregularity, for example where a plaintiff is made aware of a mistake in the defendant’s name or the wrong name or wrong form is used” (Marte, 58 AD3d at 4). In the order appointing a referee, the court amended the caption of this [*2]action by “striking the name of the defendant AMELIA DONVITO A/K/A AMELIA C. DONVITO . . . and substituting in place thereof JO-ANN RIDGEWAY AS HEIR TO THE ESTATE OF AMELIA DONVITO A/K/A AMELIA C. DONVITO . . . .” Here, however, decedent was never a party to the action, and thus there was no party for whom substitution could be effected pursuant to CPLR 1015 (a).”
