Strautmanis v. GMDC Two Corp.

Strautmanis v GMDC Two Corp. (2022 NY Slip Op 03092) Strautmanis v GMDC Two Corp. 2022 NY Slip Op 03092 Decided on May 10, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: May 10, 2022 Before: Renwick, J.P., Mazzarelli, Gesmer, González, JJ. Index No. 158429/20 Appeal No. 15914 Case No. 2021-03768 [*1]Irja Strautmanis, Plaintiff-Respondent, v GMDC Two Corporation, et al., Defendants, Philip Cheung, Defendant-Appellant. Gallo Vitucci Klar LLP, New York (Sean R. Hutchinson of counsel), for appellant. Thompson Hine LLP, New York (Richard A. De Palma of counsel), for respondent. Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered May 18, 2021, which, to the extent appealed from as limited by the briefs, denied defendant Philip Cheung's motion to dismiss the complaint based on plaintiff's alleged improper utilization of CPLR 1024 and failure to commence the action against him within the statute of limitations, unanimously affirmed, with costs. The court correctly denied Cheung's motion to dismiss the complaint as against him where plaintiff made diligent efforts to ascertain Cheung's identity prior to filing her complaint, and the complaint adequately described Cheung to apprise him that he was the intended defendant (see CPLR 1024; Tucker v Lorieo, 291 AD2d 261 [1st Dept 2002]; Goldberg v Boatmax://, Inc., 41 AD3d 255, 256 [1st Dept 2007]). The court also correctly found that plaintiff served process on Cheung within the statute of limitations (see Tucker, 291 AD2d at 261-262). We have considered Cheung's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: May 10, 2022