Not so stale

Williams v New York City Hous. Auth., 2020 NY Slip Op 03063 [1st Dept. 2020]

Preliminarily, we do not reject the Ruiz notarized statement out of hand based on the perceived infirmities relied on by the motion court, such of the lack of a caption and the absence of a declaration that it was sworn to under penalty of perjury. These are technical errors that did not prejudice a substantial right of the defendants (CPLR 2001; see e.g. Moore v DL Peterson Trust, 172 AD3d 1058 [2d Dept 2019]). We similarly reject NYCHA’s position that the affidavit is “stale.” This action involves a static set of facts that have not changed since the day of the accident. The fact that the affidavit was prepared contemporaneously makes it more probative than had it been made at the time of the summary judgment motions, not less.


CPLR 2001

Patel v S. & S. Props., Inc., 2018 NY Slip Op 06757 [2d Dept. 2018]

Contrary to the plaintiff’s contention, the Supreme Court did not err in considering the merits of the defendant’s motion even though the defendant failed to include with its motion papers the plaintiff’s reply to the counterclaims (seeCPLR 2001; Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 122 AD3d 688, 691; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d 611, 612). The record was sufficiently complete, since the plaintiff included the pleading with his opposition, and there is no proof that a substantial right of the plaintiff’s was impaired by the defendant’s failure to submit the reply with its motion papers (see Long Is. Pine [*2]Barrens Socy., Inc. v County of Suffolk, 122 AD3d at 691; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d at 612).

The failure to annex the pleadings isn’t quite so terrible [CPLR 3212(b) and CPLR 2001]

Sensible Choice Contr., LLC v Rodgers, 2018 NY Slip Op 05790 [2d Dept 2018]

The defendants' contention that the plaintiff's failure to annex the pleadings to its motion papers was a fatal defect is without merit. CPLR 3212(b) requires, inter alia, that a moving party support its motion for summary judgment by attaching a copy of the pleadings. However, [*2]CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced (see Wade v Knight Transp., Inc., 151 AD3d 1107, 1109). Here, the pleadings were not only electronically filed and available to the Supreme Court and the parties, but the answer was submitted by the defendants in opposition to the motion, and the summons and complaint were submitted in reply by the plaintiff. The defendants did not assert that they were prejudiced by the omission. Under such circumstances, the court properly disregarded the plaintiff's omission (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 742; Studio A Showroom, LLC v Yoon, 99 AD3d 632Welch v Hauck, 18 AD3d 1096, 1098).

CPLR 2001, the fixer

Lipinsky v Yarusso, 2018 NY Slip Op 05925 [2d Dept 2018]

 Contrary to the defendant's contention, Walters' affidavit was admissible, notwithstanding that it was subscribed and sworn to out of state and not accompanied by a certificate of conformity as required by CPLR 2309(c), as such a defect is not fatal, and no substantial right of the defendant was prejudiced by disregarding the defect (see CPLR 2001; Voskoboinyk v Trebisovsky, 154 AD3d 997, 998; Bank of N.Y. Mellon v Vytalingam, 144 AD3d 1070, 1071). The defendant's contention that Walters' affidavit should not be considered because Walters had not previously been disclosed as a witness, raised for the first time on appeal, is not properly before this Court (see Warren v Carreras, 133 AD3d 592, 594).

Why bother having a rule (2309(c)), if it does not matter if it is followed?

Inadvertently left out CPLR 2001

Cuthbert v Foreign Dev. Serv., Ltd., 2018 NY Slip Op 03812 [1st Dept. 2018]

The court providently exercised its discretion in granting defendants' motion for renewal and reargument of their prior motion for summary judgment so that they could submit a lease extension to which they had referred in their initial moving papers but which they had inadvertently failed to attach to the papers (see CPLR 2001).

Hernandez v Marcano, 2018 NY Slip Op 03816 [1st Dept. 2018]

The court improvidently exercised its discretion in denying plaintiff's motion to renew, which sought to submit an affirmation by her treating physician that, although referred to in her opposition papers, had been inadvertently omitted from the set of papers filed in court (see CPLR 2221[e]). Plaintiff demonstrated that the omission was the result of law office failure and that consideration of the affirmation would not prejudice defendants (see Cruz v Castanos, 10 AD3d 277 [1st Dept 2004]; Cespedes v McNamee, 308 AD2d 409 [1st Dept 2003]; see also Telep v Republic El. Corp., 267 AD2d 57, 58 [1st Dept 1999]).

CPLR 2001 [must be merely technical]; CPLR 5015(a)(4)

CPLR 2001

CPLR 5015(a)(4)

Segway of N.Y., Inc. v Udit Group, Inc., 2014 NY Slip Op 05971 [2nd Dept. 2014]

However, the Supreme Court erred in applying CPLR 2001 so as to disregard the facial defects in the summons and notice of motion that were identified by the defendants. That section "may be used to cure only a technical infirmity'" (Ruffin v Lion Corp., 15 NY3d 578, 582, quoting Matter of Miller v Board of Assessors, 91 NY2d 82, 87). "In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (Ruffin v Lion Corp., 15 NY3d at 582 [internal quotation marks omitted]). Where a defect creates a "greater possibility" of frustrating the core principles of notice to the defendant, the defect must be regarded as substantial and courts may not disregard it under CPLR 2001 (id. at 583; see Brown v State of New York, 114 AD3d 632, 633).

Here, the notice of motion for summary judgment in lieu of complaint did not provide timely notice of the motion to the defendant Andrew Udit, who was served by substituted service pursuant to CPLR 308(2), inasmuch as the notice of motion set a return date that was prior to the expiration of the 30-day period within which that defendant was statutorily entitled to appear (see CPLR 320[a]; 3213). Furthermore, the copies of the notice of motion served upon the defendants with the summons pursuant to CPLR 3213 contained an affirmative misstatement of the address at which the motion could be defended (cf. CPLR 2214[a]). We deem it appropriate to take judicial notice (see Consolidated Edison Co. of N.Y. v Public Serv. Commn. of State of N.Y., 47 NY2d 94, 110, revd on other grounds, 447 US 530 and revd sub nom. on other grounds Central Hudson Gas & Elec. Corp. v Public Serv. Comm'n of N.Y., 447 US 557; Appelbaum v Deutsch, 111 AD2d 21, 22, affd 66 NY2d 975; Dougherty v 425 Dev. Assoc., 93 AD2d 438, 447; see also Jerome Prince, Richardson on Evidence §§ 2-202, 2-203 [Farrell 2008]) of the fact that the incorrect address given in the notice of motion pertained to an actual roadway located in Mineola, New York, and was not merely a misspelling of the correct address for the relevant courthouse. As such, the motion for summary judgment in lieu of complaint was made returnable to a location in Mineola at which the Supreme Court was not located, and at which the motion could not have been opposed. These defects in the notice of motion, under the particular circumstances of this case and in the context of an action commenced pursuant to CPLR 3213, created a greater possibility of frustrating the core principles of notice to the defendants (see Ruffin v Lion Corp., 15 NY3d at 583; Brown v State of New York, 114 AD3d at 633). Accordingly, these defects constitute "jurisdictional defect[s] that courts may not overlook" pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d at 582; see Matter of Cartier v County of Nassau, 281 AD2d 477, 478; Matter of Hawkins v McCall, 278 AD2d 638, 638; Matter of Lincoln Plaza Tenants Corp. v Dinkins, 171 AD2d 577, 577; Matter of Common Council of City of Gloversville v Town Bd. of Johnstown, 144 AD2d 90, 92). Since the Supreme Court failed to acquire personal jurisdiction, "all subsequent proceedings are thereby rendered null and void" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [internal quotation marks omitted]), and the default judgment entered against the defendants is "a nullity" (Prudence v Wright, 94 AD3d 1073, 1074; see Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889; Harkless v Reid, 23 AD3d 622, 623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402).

Accordingly, the defendants' motion to vacate the judgment dated January 13, 2012, and thereupon to dismiss the action for lack of personal jurisdiction, should have been granted (see CPLR 5015[a][4]).

CPLR 2001 procedural irregularities and CPLR 3101 overbroad discovery

CPLR 2001

CPLR 3101

Lawrence v Kennedy, 2014 NY Slip Op 00329 [2nd Dept. 2014]

Contrary to the plaintiff's contentions, the Supreme Court properly considered the firm's motion for leave to reargue that branch of its prior motion which was to compel the production of certain documents despite certain procedural irregularities, as those irregularities did not prejudice the decedent (see CPLR 2001; Jones v LeFrance Leasing L.P., 81 AD3d 900, 903; Piquette v City of New York, 4 AD3d 402, 403). Further, the Supreme Court providently exercised its discretion in granting leave to reargue (see CPLR 2221[d][2]; Singleton v Lenox Hill Hosp., 61 AD3d 956, 957; Marini v Lombardo, 17 AD3d 545, 546; Carrillo v PM Realty Group, 16 AD3d 611, 611).

Upon reargument, however, the Supreme Court should have denied that branch of the firm's motion which was to compel the production of the documents, including certain documents removed from the firm's offices by the plaintiff. In this regard, the firm's document requests, many of which sought the decedent's personal financial information, were overly broad, and sought irrelevant or confidential information (see Conte v County of Nassau, 87 AD3d 559, 560; Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 AD3d 752, 753; Pugliese v Mondello, 57 AD3d 637, 640; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621; Latture v Smith, 304 AD2d 534, 536).

Emphasis is mine.


Cross motions and SJ

CPLR R. 2215 Relief Demanded by other than moving party

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Daramboukas v Samlidis, 2011 NY Slip Op 03796 (App. Div., 2nd 2011)

Furthermore, the Supreme Court erred in denying Osdoby's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her on the ground that it was incorrectly labeled a cross motion. Although "[a] cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party" (Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844; see CPLR 2215; Kleeberg v City of New York, 305 AD2d 549, 550), a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought (see CPLR 2001; Sheehan v Marshall, 9 AD3d 403, 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d 282, 283). While the Supreme Court also denied Osdoby's motion on the ground that it was not supported by pleadings and other available proof, Osdoby incorporated by reference the pleadings and exhibits submitted by Albert in support of his original motion, and those pleadings and exhibits were therefore properly before the court (see Carlson v Town of Mina, 31 AD3d 1176, 1177; Welch v Hauck, 18 AD3d 1096, 1098; Mahone v Washington, 17 AD3d 1059). On the merits, Osdoby made a prima facie showing, through her deposition testimony, that she could not be held liable for the plaintiffs' injuries. That testimony demonstrated that she was driving in a nonnegligent manner when her vehicle was struck in the rear by the white van driven by Manginaro, and that her vehicle did not come into contact with any of the vehicles involved in the second collision about 20 car lengths east of the location where she was struck (see Vehicle and Traffic Law § 1129[a]; Savarese v Cerrachio, 79 AD3d 725). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

The Supreme Court similarly erred in denying the Tam defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that it was incorrectly labeled a cross motion (see CPLR 2001; Sheehan v Marshall, 9 AD3d at 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d at 283). On the merits, the Tam defendants made a prima facie showing that Daniel Tam was lawfully stopped at a red light when his vehicle was struck in the rear, and that he had a nonnegligent explanation for coming into contact with other vehicles at the scene after his vehicle was struck in the rear (see Savarese v Cerrachio, 79 AD3d 725; Franco v Breceus, 70 AD3d at 769; Ortiz v Haidar, 68 AD3d 953; Malak v Wynder, 56 AD3d at 623; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d at 877). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

Fine v One Bryant Park, LLC, 2011 NY Slip Op 03659 (App. Div., 1st 2011)

It is undisputed that defendants failed to file the motion within the time period set by the assigned IAS judge. The motion court concluded that defendants failed to establish good cause for the delay in making the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). A motion court's exercise of its broad discretion in determining whether the moving party has established good cause for delay will not be overturned unless it was improvident (see Daley v M/S Capital NY LLC, 44 AD3d 313, 315 [2007]; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108 [2006]). Inasmuch as the record establishes that defendants could have easily determined which judge was assigned to the matter (see Giudice v Green 292 Madison, LLC, 50 AD3d 506 [2008]), the court's exercise of its discretion was not improvident.

Homeland Ins. Co. of N.Y. v National Grange Mut. Ins. Co., 2011 NY Slip Op 03805 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in denying, as untimely, National Grange's cross motion for summary judgment. While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), "an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590, 591-592; see Whitehead v City of New York, 79 AD3d 858, 860; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

Lyebyedyev v Hoffman, 2011 NY Slip Op 03813 (App. Div., 2nd 2011)

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, Part C[6], formerly Rule 13). Here, the defendant moved for summary judgment approximately 90 days after the note of issue was filed. Since the vague and conclusory assertions made by the defendant's attorney regarding the pendency of a motion to strike the note of issue and a delay in the defendant's signing and notarizing of his own deposition transcript were insufficient to constitute good cause, the Supreme Court erred in entertaining the summary judgment motion (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Cohen-Putnam Agency, Ltd. v Hudson Bldg. Maintenance, Inc., 55 AD3d 653; State Farm Fire & Casualty v Parking Sys. Valet Serv., 48 AD3d 550; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Pierre v Feldman, 41 AD3d 454, 455).


Disqualification, etc. 2106 too.

Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 2011 NY Slip Op 02639 (App. Div., 2nd 2011)

"The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client" (Rowley v Waterfront Airways, 113 AD2d 926, 927; see Matter of Kelly, 23 NY2d 368, 375-376; Ogilvie v McDonald's Corp., 294 AD2d 550, 552). However, "[d]isqualification denies a party's right to representation by the attorney of its choice" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131), and may create "significant hardships" for that party (Solow v Grace & Co., 83 NY2d 303, 310; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443).

Accordingly, where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts "are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake" (Niesig v Team I, 76 NY2d 363, 369-370; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443). It is the Supreme Court's responsibility to balance the competing interests, and "[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court" (Falk v Gallo, 73 AD3d 685, 685; see Cardinale v Golinello, 43 NY2d 288, 292; Matter of Erlanger [Erlanger], 20 NY2d 778, 779; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802, 802; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277). Under the circumstances present here, the Supreme Court did not improvidently exercise its discretion when it denied the plaintiff's motion to disqualify the defendant's attorney (see Campbell v McKeon, 75 AD3d 479, 480; Kushner v Herman, 215 AD2d 633, 633; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 189; Lopez v Precision Papers, 99 AD2d 507, 508; cf. Morris v Morris, 306 AD2d 449, 452).

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 2011 NY Slip Op 02067 (App. Div., 1st 2011)

Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests (see Sokolow, Dunaud, Mercadier & Carreras v Lacher, 299 AD2d 64, 75-76 [2002]; Martinez v Suozzi, 186 AD2d 378 [1992]).

While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner (see CPLR 2106), under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" (see Board of Mgrs. of Ocean Terrace Towne House Condominium v Lent, 148 AD2d 408 [1989], lv denied 75 NY2d 702 [1989]; see CPLR 2001).


CPLR § 2001 from up on high

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)

The bill that amended CPLR 2001 was introduced at the request of the Chief Administrative Judge upon the recommendation of the Advisory Committee on Civil Practice. Its purpose was to allow trial courts to fix or, where non-prejudicial, overlook defects in the filing process, including the failure to acquire or purchase an index number so long as the applicable fees were eventually paid (see L 2007, ch 529). The Introducer's Memorandum states that the bill was offered in response to our decisions in Harris, Matter of Fry v Village of Tarrytown (89 NY2d 714 [1997]) and Matter of Gershel v Porr (89 NY2d 327 [1996]) (see Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 529, at 5). Gershel and Harris both involved failure to pay the proper filing fee; in Fry, the plaintiff did not file a signed copy of an order to show cause along with his petition [FN3]. In each of these cases the correct initiatory papers were filed. As the Introducer's Memorandum emphasizes, the amendments to
section 2001 were not meant to

"excuse a complete failure to file within the statute of limitations. Moreover, in order to properly commence an action, a plaintiff or petitioner would still have to actually file a summons and complaint or a petition. A bare summons, for example, would not constitute a filing. The purpose of this measure is to clarify that a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED, is a mistake subject to correction in the court's discretion" (id. at 5-6 [capitalization in original] [emphasis added]).

Here, plaintiff never filed a summons and complaint. The closest he came was the proposed complaint attached to the petition he filed when seeking permission to file a late notice of claim, itself a prerequisite to the commencement of this action. Given the absence of a summons, there was "a complete failure to file within the statute of limitations," which CPLR 2001 does not allow a trial judge to disregard.[FN4]