Hoot Group, Inc. v. Caplan

Jul 26, 2004
Versions:9 A.D.3d 448
779 N.Y.S.2d 922
2004 N.Y. App. Div. LEXIS 10015

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Dutchess County (Brands, J.), entered October 20, 2003, which, upon an order of the same court dated September 25, 2003, granting the plaintiffs motion for summary judgment, is in favor of the plaintiff and against him in the principal sum of $10,725. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CFLR 5512 [a]).

Ordered that the judgment is affirmed, with costs.

Although the plaintiff properly commenced this action in the Supreme Court, Dutchess County, the summons and complaint incorrectly bore a “County Court, Dutchess County” caption.

Under the circumstances of this case, this ministerial error provides no basis for disturbing the judgment. “Defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice” (First Wis. Trust Co. v Hakimian, 237 AD2d 249 [1997]; see CPLR 104, 2001, 2101 [f]; 3025 [c]; 3026). The defendant failed to demonstrate that he incurred any prejudice as a result of the incorrect caption on the summons and complaint. Indeed, he timely answered the complaint and opposed the motion for summary judgment. Moreover, both the plaintiffs motion papers and the affidavit which the defendant submitted in opposition thereto properly contained a “Supreme Court, Dutchess County” caption.

Since the defendant failed to lay bare and reveal his proof, as it was incumbent upon him to do in opposition to the plaintiffs establishment of its entitlement to summary judgment, the Supreme Court properly granted summary judgment to the plaintiff (see Nel Taxi Corp. v Eppinger, 203 AD2d 438 [1994]). Florio, J.P., Krausman, Townes, Mastro and Fisher, JJ., concur.