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09/04/96 NEW YORK CARPET WORLD v. DEPARTMENT

September 4, 1996

NEW YORK CARPET WORLD, INC., PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY, DIRECTOR LOLETA DIDRICKSON, AND MICHAEL HALSTEAD, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 91 L 50857. Honorable Earl Arkiss, Judge, Presiding.

Released for Publication October 4, 1996.

The Honorable Justice Cerda delivered the opinion of the court. Tully, P.j., and Rizzi, J.,* concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Plaintiff, New York Carpet World, Inc., appeals from the circuit court of Cook County's dismissal of plaintiff's complaint seeking review of a decision of the Board of Review of the Department of Employment Security. Plaintiff argues that (1) the complaint sufficiently named the Board of Review as defendant; (2) the complaint should not have been dismissed because defendant Department was a misnomer for the Board of Review; and (3) the complaint could have been amended to add the Board of Review as defendant. We affirm.

I. Facts

On June 25, 1991, the Board of Review issued a decision in the matter of Michael Halstead, claimant, and New York Carpet World, Inc., employer (appeal docket No. ABR--90--10467). The Board of Review found that defendant Michael Halstead was eligible for unemployment benefits.

On July 30, 1991, plaintiff filed an administrative-review complaint against defendants: the Department, Department Director Loleta A. Didrickson, and Michael Halstead. The first paragraph of complaint alleged that the Department had rendered its final administrative decision through its Board of Review.

On July 30, 1991, summonses for the complaint was issued. According to the proof of service, defendants were served on July 31, 1991, by registered mail, although the record indicates elsewhere that the summonses were mailed by certified mail.

The Illinois Attorney General filed a special and limited appearance for the Department and moved to quash the summons and to dismiss the Department. The Department argued that it did not issue the decision under review and that the Board of Review, which did issue the decision, was not named as defendant or served. An exhibit to the motion was a copy of the summons served on the Department, and it had the time stamp of the Board of Review for August 2, 1991.

The Department later filed a motion to dismiss for lack of subject matter jurisdiction.

Ninety days after the administrative decision was issued, on September 23, 1991, plaintiff filed a motion for leave to file an amended complaint to specifically identify the Board of Review as a defendant.

On January 13, 1995, the Department filed a motion to dismiss for want of prosecution or, in the alternative, for lack of subject matter jurisdiction.

On March 15, 1995, the trial court granted the motion to dismiss for lack of subject matter jurisdiction, denied plaintiff's motion for leave to file an amended complaint, ...


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