properly considered the cross-motion: 2103 2001

CPLR R. 2103 Service of papers

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Jones v LeFrance Leasing Ltd. Partnership, 2011 NY Slip Op 01441 (App. Div., 2nd 2011)

Contrary to Alliance's contention, the Supreme Court properly considered the plaintiffs' cross motion. Although the plaintiffs served their cross motion via media mail, as opposed to first class mail (see CPLR 2103), since Alliance opposed the cross motion on the merits, the defect in service was a mere irregularity that did not result in substantial prejudice to Alliance (see CPLR 2001; Piquette v City of New York, 4 AD3d 402, 403; see also Henry v Gutenplan, 197 AD2d 608). 

Mere Irregularities. CPLR § 2001. CPLR R. 2101(f)

CPLR § 2001 Mistakes, omissions, defects & irregularities

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.

False Start–CPLR § 304

CPLR § 304. Method of commencing action or special proceeding

Goldenberg v Westchester County Health Care Corp., 2009 NY Slip Op 09616 (App. Div., 2nd, 2009) [Edit: 4/7/11. Affirmed by Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)

The plaintiff served the summons and complaint upon the defendants in this malpractice action without ever filing them or obtaining an index number and paying the filing fee for the action. Accordingly, the action was never validly commenced (see CPLR 304). Following the expiration of the applicable statute of limitations, the defendants moved to dismiss the complaint as time-barred, and the plaintiff cross-moved, inter alia, for leave to file the summons and complaint nunc pro tunc. The Supreme Court correctly granted the defendants' motion and denied the plaintiffs' cross motion.

Contrary to the plaintiff's contention, the defendants raised timely objections to the plaintiff's failure to file and to the untimeliness of the action, since they asserted affirmative defenses regarding lack of jurisdiction and the expiration of the statute of limitations in their amended verified answer (see CPLR 3211[e]; see generally Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 159; cf. Sirkis v Cohen, 23 AD3d 369). Similarly, the defendants were not obligated to move to dismiss the action within 60 days following the service of their answer pursuant to CPLR 3211(e), since their objection was not based on improper service (see Sangiacomo v County of Albany, 302 AD2d 769, 772). Indeed, the plaintiff was free to move pursuant to CPLR 3211(b) to dismiss the jurisdictional defense if he desired a more prompt resolution of the merits of that defense. [*2]

Furthermore, the plaintiff cannot rely upon the remedial language of CPLR 2001 to cure his error, since that statute does not excuse a complete failure to file within the statute of limitations, as occurred here (see Matter of Miller v Waters, 51 AD3d 113, 117-118; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C304:3, 2009 Pocket Part, at 162, 165). Likewise, the plaintiff cannot rely on his filing of a proposed complaint in a prior proceeding for leave to file a late notice of claim to act as the functional equivalent of a filing in this action (see generally Rybka v New York City Health & Hosps. Corp., 263 AD2d 403). The papers served in an action must conform in all material respects to the papers that are filed to commence it (see Matter of Gershel v Porr, 89 NY2d 327, 332; Page v Marusich, 30 AD3d 871, 873; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26). Here, the complaint served in this action dramatically differed, substantively and materially, from the proposed complaint which the plaintiff filed in the prior proceeding. Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint. Moreover, the court properly denied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tunc since, under the circumstances herein, the granting of that relief would impermissibly extend the statute of limitations (see CPLR 201; Bradley v St. Clare's Hosp., 232 AD2d 814, 815).

The bold is mine.

CPLR R. 2221CPLR § 2001

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue

Ayoub v Ayoub, 2009 NY Slip Op 05164 (App. Div., 1st, 2009)

The preliminary conference order indicated that the issue of equitable
distribution was resolved and that all financial and property issues
except for child support were resolved by the parties' prenuptial
agreement. In her motion to modify the preliminary conference order,
plaintiff did not demonstrate good cause (see 22 NYCRR
202.16[f][3]) to raise the issue of equitable distribution of the
marital residence. Indeed, contrary to her contention, the prenuptial
agreement is clear that the only property subject to equitable
distribution is that titled in joint names, of which there is none.
While the agreement contains a separate section dealing with a marital
residence, the plain language of paragraph 4 of that section provides
for equitable distribution only if "the Marital Residence is purchased
as Jointly Owned Property."

Nor is relief available under CPLR 2001, since the waiver of
the issue of equitable distribution in the preliminary conference order
was not simply a slight mistake
(see People ex rel. Di Leo v Edwards,
247 App Div 331 [1936]). Similarly, no relief is available under CPLR
2221. In her motion papers, plaintiff did not even assert that the
preliminary conference order reflected a misapprehension of law or
Furthermore, the court correctly found that plaintiff's hiring
of new counsel did not present a new fact permitting her to revisit the
issues resolved in the preliminary conference order

Caraballo v Kim, 2009 NY Slip Op 05279 (App. Div., 2nd, 2009)

The medical report of the injured plaintiff's treating chiropractor,
Dr. Alan C. Berger, dated May 8, 2006, did not constitute evidence
competent to oppose the defendants' motion because it was unaffirmed (see Grasso v Angerami, 79 NY2d 813
; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

The affirmation of Dr. Stuart I. Springer, the injured
plaintiff's treating physician, also failed to raise a triable issue of

The affirmed magnetic resonance imaging reports of Dr. Mark
Shapiro and Dr. Marc Liebeskind merely revealed the existence of disc
bulges at L3-4 and L4-5, a disc herniation at L5-S1, possible tears in
the posterior horns of the medial menisci of the right and left knees,
and a possible tear (rupture) of the anterior cruciate ligament in the
left knee. This Court has held that a herniated or bulging disc, or
even a tear in a tendon, is not evidence of a serious injury in the
absence of objective evidence of the extent of the alleged physical
limitations resulting from the injury and its duration (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583).
A tendon is defined as "[t]he cord of tough connective tissue which
forms the end of a muscle and which connects the muscle to the bone"
(5-T-TG Attorneys' Dictionary of Medicine [2005 ed] at 974). Tendons
"are bands of fibrous connective tissue" (5-15A Attorneys' Textbook of
Medicine [3d ed] at 15A.10). A ligament is defined as "[a] band of
tough but flexible tissue which serves to connect bones (as in the
formation of a joint), to hold organs in place, etc." (3-L Attorneys'
Dictionary of Medicine [2005 ed] at 2302). Ligaments, like tendons, are
"bands of tough, fibrous connective tissue" (4-13 Attorneys' Textbook
of Medicine [3d ed] at 13.10). Thus, injuries involving tendons and
ligaments must be treated similarly under Insurance Law § 5102(d).
Evidence of the extent and duration of any alleged limitation arising
from injury to the plaintiff's discs or ligaments was clearly lacking
here. The deposition testimony of the injured plaintiff was
insufficient to supply such evidence (see Washington v Mendoza, 57 AD3d 972).

The Supreme Court providently exercised its discretion in
denying the plaintiffs' motion for leave to renew their opposition to
the defendants' motion for summary judgment (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472).
A motion for leave to renew "shall be based upon new facts not offered
on the prior motion that would change the prior determination" (CPLR
2221[e][2]) and "shall contain reasonable justification for the failure
to present such facts on the prior motion" (CPLR 2221[e][3]; see Ramirez v Khan, 60 AD3d 748; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744).
While it may be within the court's discretion to grant leave to renew
upon facts known to the moving party at the time of the original motion
(see Ramirez v Khan, 60 AD3d 748; J.D. Structures v Waldbaum, 282 AD2d 434; Cronwall Equities v International Links Dev. Corp.,
255 AD2d 354), a motion for leave to renew " is not a second chance
freely given to parties who have not exercised due diligence in making
their first factual presentation'" (Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329; see Ramirez v Khan, 60 AD3d 748; O'Dell v Caswell, 12 AD3d 492; Hart v City of New York, 5 [*3]AD3d 438; Carota v Wu,
284 AD2d 614). In this case, the plaintiffs failed to provide
reasonable justification for the failure to include the findings in the
supplemental affidavit of Dr. Berger on the original motion (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472)

The bold is mine.

CPLR § 2001

CPLR § 2001 Mistakes, omissions, defects & irregularities

Mazzarelli v. 54 Plus Realty Corp., 2008 NY Slip Op 07219 (App. Div., 2nd)

The plaintiff’s
contention that the deposition transcript of the representative of the
defendant 54 Plus Realty Corp. (hereinafter the defendant) was in inadmissible
form and thus improperly considered by the motion court is without merit.
Although the defendant did not submit the complete transcript with its original
motion papers, the properly-certified and executed signature page of the
deposition transcript was submitted with its reply papers. The defendant
demonstrated that it forwarded the original signed transcript to the
plaintiff’s attorney approximately three months prior to moving for summary
judgment. Under these circumstances, the plaintiff was not prejudiced by the
omission of the signature page from the original motion papers, which was
properly disregarded by the Supreme Court (see
CPLR 2001)

Compare this decision with
Tu v Loan Pricing Corp., 2008 NY Slip Op 51945(U) (Supreme Court, New York County), one post below.

All the bold is mine.