Think before you sue… at least about whom you are suing (NY)

One would think that some basic investigation would be done prior to filing a complaint – if for no reason other than to establish exactly whom to sue.  Apparently the failure to do so in Holtzman v. KTB Athletics SB ™ led ultimately to a dismissal of the action.

In that personal injury litigation, the plaintiff moved for default when the defendant failed to answer.  The motion was granted in Kings Supreme.  The Court then denied the defendant’s motion to vacate the default order as well as its motion to dismiss.

When the Second Department further considered the merits of the motions, it reversed. The appellate court found that not only had the plaintiff failed to demonstrate proper service but also failed to demonstrate that the defendant was a “jural entity amenable to suit.”  The Court did not expand upon why KTB Athletics was not a legal entity subject to process, but for the plaintiff’s purposes, defective service upon a legally unrecognized entity rendered both the default judgment and the complaint defective.

It is no secret that some sue first and ask questions later, but this case opens the possibilities when there is an utter lack of care to correctly identify the legal parties involved in a claim.

Special thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.