Sherk v. Sherk

Feb 2, 2007
Versions:37 A.D.3d 1062
829 N.Y.S.2d 774

Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered January 10, 2006 in a personal injury action. The order, among other things, denied the motion of defendant DaimlerChrysler Corporation, doing business as Dodge, for an order dismissing the action in its entirety.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Madonna L. Sherk (plaintiff) when the interior door handle of a vehicle manufactured by DaimlerChrysler Corporation (defendant) unexpectedly broke causing plaintiff to fall to the ground. Plaintiffs timely served a summons with notice upon defendant, but the notice failed to state a sum of money for which judgment may be taken in the event of a default, as required by CPLR 305 (b). We agree with plaintiffs, however, that “the absence of a monetary amount in a notice served with a summons is a correctable irregularity” (Premo v Cornell, 71 AD2d 223, 224 [1979]; see Merwitz v Dental Care Servs., 155 AD2d 748, 750 [1989]; see generally Kolnacki v State of New York, 28 AD3d 1176 [2006], lv granted 30 AD3d 1116 [2006]), “and not a jurisdictional defect” (Merwitz, 155 AD2d at 750).

Present—Gorski, J.P., Fahey, Peradotto, Green and Pine, JJ.