Opinion
15914 Index No. 158429/20 Case No. 2021–03768
05-10-2022
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.
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.
Renwick, J.P., Mazzarelli, Gesmer, Gonza´lez, JJ.
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 A.D.2d 261, 738 N.Y.S.2d 33 [1st Dept. 2002] ; Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256, 840 N.Y.S.2d 570 [1st Dept. 2007] ). The court also correctly found that plaintiff served process on Cheung within the statute of limitations (see Tucker, 291 A.D.2d at 261–262, 738 N.Y.S.2d 33 ).
We have considered Cheung's remaining arguments and find them unavailing.