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Inc. Spoils Suit
by Ron Davis

A simple error in the choice of one word can sometimes make all the difference in the outcome of a lawsuit resulting from an accident at a shopping center.

Example: An attempt to sue the manager of Samsondale Plaza, a shopping center located in West Haverstraw, NY. A woman there claimed that while walking across the parking lot of that shopping center, she slipped and fell, injuring herself. She blamed the manager of the facility, claiming that the manager’s principals failed to properly maintain the parking lot.

But after she decided to sue the manager, Paragon Management Group, LLC, she waited until one day before the deadline for filing her lawsuit with the New Jersey Secretary of State. Then, instead of naming the object of the lawsuit as Paragon Management Group, LLC, she filed her complaint against Paragon Management Group, Inc.

In fact, such a company named Paragon Management Group, Inc., exists. And the principal of Paragon Management Group, LLC, claimed that the company had not received a copy of the summons and complaint. Paragon Management Group, Inc., a corporation designating the state Secretary of State as its agent for service of such a process, had apparently received those documents.

So the deadline for filing such a lawsuit passed without the complaint reaching the intended party. In response, the woman filing the lawsuit asked for an extension to allow her to resubmit the documents.

A New York court refused to grant the woman’s request, explaining that the court lacked the authority to extend the woman’s time to serve the complaint.

The woman appealed, arguing that the “Inc.” caption should simply have been changed to “LLC” to allow the serving of the complaint.

An appellate court agreed that the woman’s error in filing her lawsuit was fatal. Explained the judge, “The motion to dismiss the lawsuit insofar as asserted against [Paragon Management Group, LLC], for lack of personal jurisdiction should have been granted, the cross-motion for leave to extend the time to serve a summons and complaint upon [Paragon Management Group, LLC] should have been denied, and the [LLC] caption should not have been deemed amended.” (Henriquez v. Inserra Supermarkets, Inc., WL 4855989 [N.Y.A.D. 2 Dept.])

Decision: December 2009
Published: January 2010



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