DECISION AND ORDER The Plaintiff commenced this action seeking the payment of no fault benefits provided to the assignor, Raphael Diaz in the amount of $878.67. The Plaintiff named Integon Casualty Insurance Company as a Defendant, although the real party in interest is Integon National Insurance Company, hereinafter National. The movant, National, moves for an Order dismissing the case pursuant to CPLR 3211(a)(8), CPLR 3211(a)(10), and CPLR 1001(a). In support of the motion, National provides the attorney affirmation of Janice P. Rosen, who argues that the Plaintiff failed to name the correct party, that the named Defendant was not properly served resulting in a lack of jurisdiction and that the Court should not proceed in the absence of a necessary party who may be affected by a judgment. Ms. Rosen also argues that the Defendant and National are “individual insurance companies with separate policies of insurance.” National provided the affidavit of its No-Fault Assistant Manager Alexia Vasquez, who acknowledges receipt of the bill by stating that the “bills in dispute under the above captioned matter were handled in compliance with the standard procedures discussed above.” Ms. Vasquez also states that a policy of insurance for the benefit of Raphael Diaz was underwritten by National and provides a copy of the Declarations page. Conspicuously absent from the motion papers is any statement from someone with personal knowledge of the facts that the two companies are indeed separate and/or not affiliated. Interestingly, Ms. Rosen denies that the Law Office which employs her is also representing the Defendant herein. However, the Notice of Motion to Dismiss is signed “Law Offices of Moira Doherty, P.C. by Janice P. Rosen, Esq. Attorneys for Defendant.” The attorney-client relationship is formed between an attorney and the client for the performance of legal services or the rendition of legal advice. Priest v. Hennessey, 51 NY2d 62 (1980). In an attorney-client relationship, there must be an explicit undertaking to perform a specific task. Nelson v. Roth, 69 AD3d 912 (2nd Dept. 2010); Terio v. Spodek, 63 AD3d 719 (2nd Dept. 2009), Tropp v. Lumer, 23 AD3d 550 ( 2nd Dept. 2005); Wei Cheng Chang v. Pi, 288 AD2d 378 (2nd Dept. 2001); Volpe v. Canfield, 237 D2d 282 (2nd Dept. 1997). Thus, an attorney has no power to act as legal counsel without the agreement of the party whom the attorney purports to act or authorization from someone who has authority. 1B Carmody-Wait 2d_3:346. Since the attorney for National admittedly does not represent the Defendant, she does not have authority to make a motion on behalf of the Defendant. Further, dismissal of an action for nonjoinder of a given party under the CPLR is a last resort. Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801 (2003). As such, the instant motion is denied. Paradoxically, by moving pursuant to CPLR 1001(a): “Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants,” [emphasis added], National is actually requesting to be made a party. In its opposition papers, the Plaintiff argues that it made a clerical error in naming the wrong Defendant and makes an application to amend the caption without making a motion and paying the filing fee. Since National has had a fair opportunity to oppose, in the interests of judicial economy, the court waives the procedural defect. CPLR 305( c ) provides: at any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced. Where the motion is to cure a misnomer in the description of a party defendant, it should be granted where the correct defendant that was misnamed in the original process has been properly served, would not be prejudiced by granting the amendment sought, and…. where the misnomer could not have misled the defendant about whom the plaintiff was in fact seeking to sue. Duncan v. Expositions, 2020 WL 5540504; Chambers v. Prug, 162 AD3d 974 (2nd Dept. 2018): Ober v. Rye Town Hilton, 159 AD2d 16 (2nd Dept. 1990). Here, National acknowledges that it is the intended party, has acknowledged that it issued an insurance policy for the Assignor, was billed in the correct name, and said bill listed National’s correct address. Thus, National cannot reasonably argue that it was misled about whom the Plaintiff sought to sue. With respect to the issue of proper service, National did not provide information as to how it received notice of the case. Although the Appellate Division has found in Duncan v. Expositions, Chambers v. Prug, and Ober v. Rye Town Hilton, supra, that amending the misnamed Defendant is appropriate when there is proper service, there are no cases that address the instance where the issue of proper service on the proposed new Defendant is silent. The language in CPLR 305 (c) does not state a requirement of proper service. This may be due to the fact that the issue of whether the proposed Defendant was properly served is an issue that can be determined once it is raised as an affirmative defense. It is likely that the glaring omission of the discussion of service in National’s “bare bones” affidavit is a litigation strategy because National was properly served or it may be a simple oversight. While the court is aware that it may use its discretion to adjourn the motion to request further submissions on the issue, the court declines to do so as it would cause further delay. Given that the issue of proper service can be determined after the proposed Defendant appears as a Defendant, the Court finds that actual notice is sufficient for the purposes of CPLR 305 (c). Moreover, National has failed to establish that the amendment would be prejudicial. The Court finds National’s argument that it is unjustly prejudiced by the accrual of interest starting 11/21/19 unavailing. Courts have routinely recognized the ability of a nonjoined party to intervene in an action to avoid prejudice. L3 Communications Corp. v. SafeNet, Inc. 45 AD3d 1 (1st Dept. 2007); see generally, Saratoga County Chamber of Commerce, Inc. v. Pataki,100 NY2d 801 (2003). A party’s ability to avoid prejudice and the deliberate choice of litigation strategy mitigates the claim of prejudice. L3 Communications Corp. at 13. Having timely notice of the litigation, receipt of the bill correctly naming National, and the awareness that National was the intended Defendant, National pursued a course of action that would create a delay. It cannot now claim that it is prejudiced by its own litigation strategy. Thus, the Court grants the amendment to the summons and complaint nunc pro tunc. Accordingly, it is hereby Ordered that the National’s motion is denied, and it is further Ordered, that the Plaintiff’s application is granted, and it is further Ordered, that the clerk of the court is directed to replace the name of the Defendant with “Integon National Insurance Company” on the court file of this case, and it is further Ordered, that the Plaintiff is directed to electronically file with the court and serve Defendant Integon National Insurance Company an amended summons and complaint by regular mail, email, or fax and it is further Ordered, that Defendant Integon National Insurance Company shall have 30 days to file and serve an Answer. Dated: October 13, 2020
