Opinion
March 8, 1996
Appeal from the Supreme Court, Monroe County, Kehoe, J.
Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court improvidently exercised its discretion in granting plaintiff's motion for leave to serve an amended summons and complaint pursuant to CPLR 305 (c) and 3025. CPLR 305 (c) authorizes amendment of the caption of the pleadings to reflect the correct name of an existing defendant, not to add a new defendant ( see, Potamianos v. Convenient Food Mart, 197 A.D.2d 734, 735). An amendment pursuant to that section is authorized only where "(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought" ( Ober v Rye Town Hilton, 159 A.D.2d 16, 20; see also, Potamianos v Convenient Food Mart, supra, at 735; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C305:4, at 263).
From our review of the record, we conclude that there is no evidence that Annette Liebeck, the intended defendant who was misnamed in the original process, was properly served. Thus, the court never obtained jurisdiction over her and lacked the power to grant the amendment ( see, Potamianos v Convenient Food Mart, supra, at 735; McGee v Bells Supermarket, 177 A.D.2d 975, 976).