It can be frustrating and expensive when a party is incorrectly named in litigation. Court rules provide an expedited out through a pre-answer motion. However, the requirements for such a motion are stringent and require clear documentary evidence that is “essentially undeniable.” Anything less will only succeed in prolonging the process.
In Wang v. Diamond Hill Realty, LLC, , the plaintiff fell in front of a building and sued the owner and the purported tenant. However, the tenant named in the suit was not actually in possession of the property at the time in question. In a pre-answer motion the tenant informed the Court that it had not yet moved into the premises at the time of the accident. In fact, a hold-over tenant was occupying the space at that time. To support its motion, the tenant submitted its vice-president’s affidavit and a stipulation between the tenant and the prior occupant. Despite this evidence, the court denied the motion.
Noting that affidavits rarely suffice for such motions, the Court found that the affidavits and stipulation did not resolve whether the defendant tenant had responsibility for the property. The Court suggested that proper “documentary evidence” would include the lease and other such records.
Presumably, the tenant will eventually satisfy the court with competent documentation. However, no doubt it will be subject to needless discovery before it can extricate itself.
Thanks to Georgia Stagias for her contribution.