Fellows v. Fox

— Order and judgment unanimously affirmed without costs. Memorandum: The trial court’s finding that plaintiff Joseph J. Passero was not entitled to compensation for damage to his right-of-way by defendant’s logging activities is supported by the record. Although defendant’s activities caused some damage to the right-of-way, Passero failed to establish by sufficient evidence the specific damage that made the right-of-way worse after the logging than it was before. Passero also failed to establish the cost necessary for repairing any damage caused by defendant’s activities. We reject defendant’s contention that plaintiffs should not have been compensated for damage to another right-of-way because their unincorporated association, which paid the costs of repair, was not a named plaintiff. The treasurer of that 1052 association, who had the authority to sue on behalf of the association (General Associations Law § 12), was a named plaintiff, and defendant was not prejudiced by plaintiffs’ failure to plead the association as a party. In those circumstances, the trial court properly disregarded the technical defects in the pleading (see, Gianunzio v Kelly, 90 AD2d 623, 624; see also, CPLR 2001). (Appeals from Order and Judgment of Supreme Court, Monroe County, Affronti, J. — Property Damage.) Present — Denman, P. J., Green, Balio, Boehm and Davis, JJ.