CPLR § 2001 Mistakes, omissions, defects & irregularities
CPLR
R. 2101 Form of papers
(f) Defects in form; waiver
Martin v Castaneda, 2010 NY Slip Op 03881 (App. Div, 2nd, 2010)
After a hearing, in an unsigned report dated February 13, 2009, a
referee made certain findings of facts and conclusions of law. By notice
of motion dated March 20, 2009, the plaintiffs moved, inter alia, to
confirm that portion of the referee's report which recommended that the
property be sold to effect partition. In support of their motion, the
plaintiffs submitted, among other things, a copy of the referee's report
and a transcript of the hearing, both of which contained the referee's
recommendations. In opposition, the defendant contended that the subject
branch of the motion should be denied because the report was unsigned
and unfiled. By order entered July 2, 2009, the Supreme Court granted
the subject branch of the plaintiffs' motion. The defendant contends
that the report was defective as it was unfiled (see CPLR
4320[b]; 22 NYCRR 202.44), and unsigned. We affirm the order insofar as
appealed from.Although the referee did not sign his report, it was filed on
July 2, 2009, and, under the circumstances, any alleged defects were
mere irregularities and not fatal, as no substantial right of the
defendant has been or will be prejudiced (see CPLR 2001, 2101[f];
cf. Allison v Allison, 28 AD3d 406, 407, cert denied 549
US 1307; Matter of Lipsky v Koplen, 282 AD2d 462, 463; John
Hancock Mut. Life Ins. Co. v 491-499 Seventh Ave. Assoc., 169 Misc
2d 493, 498-499).
In case anyone is curious, all of the cases the court cites to at the bottom involve referees. I thought that maybe some of them would involve "mere irregularities" in other contexts, but alas, I was wrong.
bruteforcelawyer.com 