Opinion
March 27, 1995
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the judgment is modified, on the law and as an exercise of discretion, by adding a provision thereto amending the caption of the summons and complaint to include the defendant Macy's Northeast, Inc., and severing the action as against that defendant; as so modified, the judgment is affirmed, without costs or disbursements.
Inasmuch as the defendant R.H. Macy Co., Inc., demonstrated that it was neither the owner nor the tenant in possession of the Macy's store in Bay Shore in which the plaintiff Margaret Lewis was allegedly injured, the Supreme Court correctly dismissed the action as against that defendant (see, Sanzone v. Macy Co., 190 A.D.2d 617). However, the record further establishes that the plaintiffs intended to proceed against the lessee in possession and control of the Bay Shore Macy's store, which is Macy's Northeast, Inc. (hereinafter Macy's Northeast). The plaintiff timely served a summons and complaint upon an acting manager of that store (see, CPLR 311; see, Martin v. Archway Inn, 164 A.D.2d 843; cf., Ingenito v. Grumman Corp., 192 A.D.2d 509) and it is apparent that Macy's Northeast would not be prejudiced by its inclusion in this action. Therefore, an amendment is warranted to correct the plaintiffs' misdesignation of the appropriate defendant (see, CPLR 305 [c]; see, Ober v. Rye Town Hilton, 159 A.D.2d 16; Simpson v. Kenston Warehousing Corp., 154 A.D.2d 526; Creative Cabinet Corp. v. Future Visions Computer Store, 140 A.D.2d 483; Albilia v. Hillcrest Gen. Hosp., 124 A.D.2d 499).
We have reviewed the respondent's remaining contentions and find them to be without merit. Miller, J.P., O'Brien, Krausman and Florio, JJ., concur.