Key Takeaway
Buist allowed correction of proof of motion service filed in the wrong office. Minard was plaintiff's lawyer; the court required notice and time to oppose.
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Last reviewed: September 2026
Buist involved proof of motion service filed in the wrong court office. The defendants had served the plaintiff’s replacement lawyer; the appeal did not concern service on a nonparty witness or a ruling that all service defects are harmless.
Historical note: Buist corrected proof of service of motion papers, not a failure to serve a defendant; its conditional relief rested on CPLR 2001 and CPLR 2004, with notice and time to oppose preserved.
What was filed where
In Buist v Bromley Co., LLC, 151 AD3d 682 (2d Dept 2017), the plaintiff alleged injury from mold in her apartment. A December 8, 2014 stipulation required defendants to serve her newly substituted lawyer, Jason D. Minard, by December 12. Their affidavit stated that service occurred December 10.
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The court later ordered proof filed with the Kings County Clerk. Defendants instead filed it in the Supreme Court’s motion support office. When the mistake surfaced, they requested more time to file correctly and offered to serve the now-unrepresented plaintiff. The court refused and denied their summary judgment motion.
Correction came with protections for the plaintiff
The Second Department reversed and remitted. It found no reason to doubt timely service on counsel, a prompt request to correct the filing and no indicated prejudice from that correction. The plaintiff was to receive the motion papers and additional time to oppose; the motion would then be decided on its merits.
The relevant provisions were CPLR 2001 and CPLR 2004. The latter addresses extensions on good cause and just terms, except where law expressly provides otherwise.
Keep service and its proof separate
Buist did not dispense with service, grant defendants summary judgment on the mold claim or establish that filing proof never affects a deadline. Identify the paper served, recipient, governing order and filing requirement before applying its reasoning. Preserve the service record and explain the requested correction rather than assuming actual notice cures every problem.
Jason’s original commentary
Jason’s original June 2017 comment follows. It is his reaction, not a finding about the judge’s motives.
The reasons some Brooklyn Judges will come up with to avoid deciding a motion
Connect to the Encyclopedia
Start with the CPLR 2001 mistakes and irregularities hub.
- Bacon & Seiler: corrected form and missing proof
- Citimortgage: missing attachment, separate merits
- Wendover: caption amendment and a deceased defendant
- A.M. Medical: defects in a prosecution demand
For review of a particular motion or no-fault defense record, contact the office.
Legal Context
Why This Matters for Your Case
New York's no-fault insurance system, established under Insurance Law Article 51, is one of the most complex insurance frameworks in the country. Every motorist must carry Personal Injury Protection coverage that pays medical expenses and lost wages regardless of fault, up to $50,000 per person.
But insurers routinely deny valid claims using peer reviews, EUO scheduling tactics, fee schedule reductions, and coverage defenses. The Law Office of Jason Tenenbaum has handled over 100,000 no-fault cases since 2002 — from initial claim submissions through arbitration before the American Arbitration Association, trials in Civil Court and Supreme Court, and appeals to the Appellate Term and Appellate Division. Jason Tenenbaum is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
His 2,353+ published legal articles on no-fault practice are cited by attorneys throughout New York. Whether you are dealing with a medical necessity denial, an EUO no-show defense, a fee schedule dispute, or a coverage question, this article provides the kind of detailed case-law analysis that helps practitioners and claimants understand exactly where the law stands.
About This Topic
New York No-Fault Insurance Law
New York's no-fault insurance system requires every driver to carry Personal Injury Protection (PIP) coverage that pays medical expenses and lost wages regardless of who caused the accident. But insurers routinely deny, delay, and underpay valid claims — using peer reviews, IME no-shows, and fee schedule defenses to avoid paying providers and injured claimants. Attorney Jason Tenenbaum has litigated thousands of no-fault arbitrations and court cases since 2002.
271 published articles in No-Fault
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Feb 1, 2010Frequently Asked Questions
Common Questions About This Topic
4 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What did the court rule in Buist v Bromley about filing proof of service?
The court allowed correction of an affidavit proving motion service that had been filed in the wrong office. It required terms protecting the now-unrepresented plaintiff and remitted for a merits decision.
Is failure to file an affidavit of service a jurisdictional defect in New York?
Buist treated this proof-of-motion-service filing error as curable. It did not hold that every failure involving initial service or filing proof is harmless.
What is the difference between service of process and filing proof of service?
Service delivers the required papers in the legally prescribed manner; proof records that act. Buist concerned where proof of already-effected motion service was filed, not an excuse for failing to serve.
How can defendants correct a proof of service filing error in New York?
Identify the governing order, show the service record and promptly seek appropriate corrective relief. Buist required proper filing, service on the pro se plaintiff and additional time to oppose.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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