Veraso Med. Supply Corp. v. Tri State Consumers Ins. Co.

Veraso Med. Supply Corp. v Tri State Consumers Ins. Co. (2022 NY Slip Op 50288(U)) [*1] Veraso Med. Supply Corp. v Tri State Consumers Ins. Co. 2022 NY Slip Op 50288(U) [74 Misc 3d 135(A)] Decided on March 18, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on March 18, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2020-113 K C Veraso Medical Supply Corp., as Assignee of Ahondo Adzogan, Appellant, against Tri State Consumers Ins. Co., Respondent. The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for respondent (no brief filed). Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 4, 2019. The order, insofar as appealed from, denied plaintiff's motion for summary judgment. ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs. In November of 2015, plaintiff commenced this action by filing a summons and complaint seeking to recover assigned first-party no-fault benefits for medical services it had provided to defendant's insured as a result of a car accident that occurred on December 21, 2013. Defendant denied the allegations in its answer dated December 24, 2015, and asserted affirmative defenses. By an undated notice of motion, plaintiff moved for summary judgment and, in support thereof, plaintiff submitted its counsel's undated affirmation. Defendant cross-moved to dismiss the complaint, relying, in part, on an unsigned and undated affidavit. By order entered October 4, 2019, the Civil Court denied plaintiff's motion and defendant's cross motion. The court stated that "Defendant's [cross] motion is denied for defective notice/papers. Plaintiff's motion is denied for defective papers." Plaintiff appeals from so much of the order as denied its motion. While a court may disregard procedural irregularities (see CPLR 2001), we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff's motion "for [*2]defective papers," particularly when the court also denied defendant's cross motion for the same reason. Accordingly, the order, insofar as appealed from, is affirmed. WESTON, J.P., and TOUSSAINT, J., concur. GOLIA, J., dissents and votes to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff's motion for summary judgment in the following memorandum: CPLR 2001 provides, in relevant part, that, "if a substantial right of a party is not prejudiced, [a] mistake, omission, defect or irregularity shall be disregarded" (see Grskovic v Holmes, 111 AD3d 234, 242-243 [2013]; see also Harrington v Brunson, 129 AD3d 1581 [2015]; Henry v Gutenplan, 197 AD2d 608 [1993]). The Civil Court failed to identify the defect in plaintiff's motion papers or any substantial right of a party that was prejudiced thereby. The majority points out that the notice of motion was undated as was the supporting affirmation. I note, however, that there was a return date on the notice of motion, and even the omission of a return date is not necessarily prejudicial and has been held to have been properly disregarded (see Harrington v Brunson, 129 AD3d at 1581). In any event, under the circumstances presented, the matter should be remitted to the Civil Court for identification of the defect and a determination of whether any substantial right was prejudiced thereby. In the event that it is established that a substantial right of a party is not prejudiced, the defect shall be disregarded and the court should decide the motion on its merits. Accordingly, I vote to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff's motion for summary judgment. ENTER: Paul Kenny Chief Clerk Decision Date: March 18, 2022