Smith, J., dissents in part in a memorandum as follows: The motion court properly concluded that, given proper service and the absence of surprise and prejudice, plaintiff should be allowed to amend its complaint to substitute Bermuda Rental Car Co., Inc. for the misnamed, non-existent defendant Bermuda Limousine Company. However, it was error to allow the complaint to be amended to name Robert Verdi as a defendant. Accordingly, I dissent from that part of the majority’s decision.
This is a nuisance action based upon the alleged contamination of plaintiff’s groundwater by gasoline which leaked from gasoline storage tanks on defendant’s premises. Robert Verdi is a shareholder and officer of Bermuda Rental Car Co., Inc. He is also alleged to be the owner of the premises where the leak developed. Although Verdi was served with the original complaint, he was not named as a defendant therein and there is nothing in the original complaint indicating that plaintiff intended to recover a judgment against an individual, as opposed to a corporation. Verdi had no notice that plaintiff intended to recover a judgment against him and absent this amendment, the statute of limitations might otherwise bar plaintiff’s recovery against Verdi. In light of this surprise and prejudice, amending the complaint to include Verdi as a defendant should not be allowed (see, Stuyvesant v Weil, 167 NY 421, 425-426 [1901]; Simpson v Kenston Warehousing Corp., 154 AD2d 526, 527 [1989]).