Kaplan v. First City Mtge.

ROY WHEATLEY KING, J. In this small claims action, plaintiff seeks a money judgment for alleged violations of the Telephone Consumer Protection Act of 1991 (47 USC § 227 [b] [1] [B] [TCPA]), Federal Communications this decision (see, CPLR 5002, 5004). As noted by the Appellate Division, Fourth Department, in Kaplan v Democrat & Chronicle (supra), the award is punitive in nature. It is well settled that a party cannot recover interest on a punitive damage award for any period prior to the date of the trial court's decision (see, Deborah S. v Diorio, 160 Misc 2d 210, 211; see also, McIntyre v Manhattan Ford, Lincoln-Mercury, 176 Misc 2d 325, 334; Siegel, NY Prac § 411, at 664-667 [3d ed]). Lastly, the court must determine whether plaintiff is entitled to judgment against both defendants. The court concludes that he is and that the parties are jointly and severally liable. However, the caption of the action must be amended because plaintiff proceeded against an improperly named party. Plaintiff commenced this action against First City Mortgage and Mills. It is undisputed that Mills filed a certificate doing business as First City Mortgage. It is clear that the relevant provisions of TCPA and General Business Law claims authorize a private action against an individual and thus plaintiff is entitled to a judgment for $550 against Mills in his individual capacity. The trade name First City Mortgage, however, is not a proper party to an action in New York and therefore the caption of the action is amended pursuant to UCCA 1814 to designate the first-named defendant to be "Stephen R. Mills doing business as First City Mortgage" (see, Patel v MacArthur, 137 Misc 2d 104, 105) and plaintiff is entitled to a judgment against said defendant for $550.