Order to Show Cause — not quite improperly served

Young v City of New York, 2018 NY Slip Op 05793 [2d Dept 2018]

Aside from a deposition conducted on March 17, 2005, this action was dormant until January 26, 2015, when the plaintiffs moved by order to show cause, inter alia, to restore the action to the active calendar and to deem their late notice of claim timely served nunc pro tunc. Unbeknownst to the plaintiffs, the Kings County Clerk's Office encountered some type of error when scanning and uploading the signed order to show cause to the eCourts system. The digital copy of the order to show cause omitted the page containing the return date of February 27, 2015, among other things, although the remaining pages feature the handwritten notation "2/27/15." The plaintiffs printed the faulty digital copy without noticing the error and served that copy on the defendants with supporting papers, using the method specified in the order to show cause.

In response, seven days before the return date, the defendants cross-moved to dismiss the complaint. They argued, among other things, that the plaintiffs' service of the faulty digital copy of the order to show cause constituted a jurisdictional defect, and that the Supreme Court should dismiss the complaint based on the plaintiffs' failure to timely serve the notice of claim. The defendants thereafter appeared on the return date. In an order dated September 11, 2015, the court denied the plaintiffs' motion by order to show cause as "defectively served," and granted the defendants' cross motion to dismiss the action. The plaintiffs appeal.

"The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion" (Gonzalez v Haniff, 144 AD3d 1087, 1088; see Crown Waterproofing, Inc. v Tadco Const. Corp., 99 AD3d 964, 965). However, the defect in service here was "merely technical" (Ruffin v Lion Corp., 15 NY3d 578, 582; see Matter of Bender v Lancaster Cent. Sch. Dist., 155 AD3d 1590, 1590; Matter of Kennedy v New York State Off. for People with Dev. Disabilities, 154 AD3d 1346, 1347; Matter of Oneida Pub. Lib. Dist. v Town Bd. of the Town of Verona, 153 AD3d 127, 130; Grskovic v Holmes, 111 AD3d 234, 241-242). Under these circumstances, given that no substantial right of the defendants was prejudiced, the Supreme Court should have disregarded the irregularity and determined the motion on the merits (see CPLR 2001; Gonzalez v Haniff, 144 AD3d at 1088; Grskovic v Holmes, 111 AD3d at 241-242).

Bold is mine.