DECISION & ORDER Appeal from an amended order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 9, 2018. The amended order, insofar as appealed from, denied the branches of a motion by New York City Transit Authority seeking (1) to vacate so much of an order of that court (Theresa M. Ciccotto, J.) entered January 12, 2017 as granted the branch of plaintiff’s prior unopposed motion seeking to amend the caption to add New York City Transit Authority as defendant, or, (2) in the alternative, upon the granting of the branch of New York City Transit Authority’s motion seeking to compel plaintiff to accept a late answer and deem the answer duly served, for summary judgment dismissing the complaint. ORDERED that the amended order entered August 9, 2018, insofar as appealed from, is reversed, without costs, and the branch of the motion by New York City Transit Authority seeking to vacate so much of the order entered January 12, 2017 as granted the branch of plaintiff’s prior unopposed motion seeking to amend the caption to add New York City Transit Authority as defendant is granted and that branch of plaintiff’s motion is denied; and it is further, ORDERED that, on the court’s own motion, so much of the amended order entered August 9, 2018 as granted the branch of the motion by New York City Transit Authority seeking to compel plaintiff to accept a late answer and deem the answer duly served is vacated and that branch of the motion is denied as academic. Plaintiff commenced this action to recover assigned first-party no-fault benefits and served the summons and complaint upon MTA Bus Company, the named defendant. Plaintiff then moved for “leave to amend the Summons and Complaint…to remove the named defendant MTA Bus Company as a defendant in this action and to add New York City Transit Authority as the herein defendant.” Plaintiff also sought leave to serve an amended summons and complaint. The motion was served by mail on New York City Transit Authority (NYCTA) on January 11, 2017 and was returnable on January 12, 2017. The motion was unopposed. By order entered January 12, 2017, the Civil Court (Theresa M. Ciccotto, J.) granted the motion and ordered that the action against MTA Bus Company was discontinued, that the caption was amended to name NYCTA as defendant, and that the summons and complaint were deemed to have been served upon NYCTA. Thereafter, NYCTA moved, pursuant to CPLR 5015 (a) (4), to vacate so much of the January 12, 2017 order as added it as defendant, on the ground that, because plaintiff’s motion had not been properly served, the court lacked jurisdiction to issue the order deciding the motion. NYCTA stated that it had not received the motion, which was returnable January 12, 2017, until January 20, 2017. NYCTA moved, in the alternative, to compel plaintiff to accept a late answer from NYCTA, to deem the answer duly served, and for summary judgment dismissing the complaint on the ground that the notice of claim and claim forms had not been timely submitted. Plaintiff opposed the motion. By amended order entered August 9, 2018, the Civil Court (Michael Gerstein, J.) denied the branches of NYCTA’s motion seeking to vacate the stated portion of the January 12, 2017 order and the alternative relief seeking summary judgment dismissing the complaint, finding that “despite lack of proper notice,” the NYCTA suffered no prejudice, and, thus, “the Court accepts Defendant’s late answer.” “The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” (Citimortgage, Inc. v. Reese, 162 AD3d 847, 848 [2018]; see Wells Fargo Bank, N.A. v. Whitelock, 154 AD3d 906, 907 [2017]). In moving to add NYCTA as defendant, plaintiff failed to comply with CPLR 2214 (b), as the affidavit of service states that plaintiff served the motion papers on NYCTA by mail on January 11, 2017, while the return date of the motion was the following day, January 12, 2017. Consequently, the Civil Court lacked jurisdiction to consider that branch of plaintiff’s motion, and the branch of NYCTA’s motion seeking to vacate the stated portion of the January 12, 2017 order is granted. We leave undisturbed so much of the amended order entered August 9, 2018 as denied the branch of NYCTA’s motion seeking summary judgment dismissing the complaint, as that branch of the motion has been rendered academic. We note that plaintiff’s motion, denominated as a motion to amend the complaint, was actually a motion for leave to add a new party, which was required to have been made on notice to the original party, MTA Bus Company (see Testing Labs. of N.Y. Inc. v. Krainin, 124 Misc 667 [App Term, 1st Dept 1925]; 19 Carmody-Wait 2d §19:111 at 356). We further note that NYCTA is not aggrieved by so much of the Civil Court’s amended order entered August 9, 2018 as granted the branch of NYCTA’s motion seeking to compel plaintiff to accept a late answer and deem the answer duly served. Nevertheless, in light of our finding that the order entered January 12, 2017 was a nullity and that, consequently, NYCTA is not a party to this action, on the court’s own motion, we vacate so much of the amended order as granted that branch of NYCTA’s motion in order to grant just and complete relief to NYCTA, and that branch of NYCTA’s motion is denied as academic (see Wheeler v. Buxton Indus. Equip. Co., 292 AD2d 521, 522 [2002]; City of Mount Vernon v. Mount Vernon Hous. Auth., 235 AD2d 516, 517 [1997]; Bukhatir Mackinnon Ltd. v. Sarfraz, 130 AD2d 358, 362 [1987]). Accordingly, the amended order entered August 9, 2018, insofar as appealed from, is reversed, and the branch of the motion by New York City Transit Authority seeking to vacate so much of the order entered January 12, 2017 as granted the branch of plaintiff’s unopposed motion seeking to amend the caption to add New York City Transit Authority as defendant is granted and that branch of plaintiff’s motion is denied. On the court’s own motion, so much of the amended order entered August 9, 2018 as granted the branch of the motion by New York City Transit Authority seeking to compel plaintiff to accept a late answer and deem the answer duly served is vacated and that branch of the motion is denied as academic. WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.
