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CPLR 2001 again as to pleadings in the dis positive application to the CourtAugust 18, 2018

Sensible Choice Contr., LLC v Rodger, 2018 NY Slip Op 05790 (2d Dept. 2018)

The trend – and it is logical – is that the defects (unless jurisdictional) will be excused absent prejudice.  Here is yet another example (again) of CPLR 2001 at play.

“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, 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).”

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