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January 30, 2014
CPLR 2101(e) Review
A client recently had a difficult time trying to file a document that lacked an
original signature in one of the New York Supreme Courts despite mentioning CPLR
2101(e), which we have provided below. The client was curious if there had been
any recent appellate division decisions in New York that involved CPLR 2101(e).
CourtAlert did a search within the four appellate divisions of New York and came
up with very little, but we were fortunate to find one within the past two
years. Along with finding a recent opinion we also went back to 1981 and came
across a Fourth Department opinion, which we thought you would find of interest.
Please review sections from both opinions below.
Rule 2101(e)
Copies. Except where otherwise specifically prescribed, copies, rather than
originals, of all papers, including orders, affidavits and exhibits may be
served or filed. Where it is required that the original be served or filed and
the original is lost or withheld, the court may authorize a copy to be served or
filed.
Appellate Division Second Department
Rechler Equity B-1, LLC v AKR Corp.
August 1, 2012
The plaintiff commenced this action to recover damages for breach of the lease,
and thereafter moved for summary judgment on the complaint and dismissing the
defendant's affirmative defenses and counterclaim. The Supreme Court denied the
plaintiff's motion because the "[plaintiff's] affidavits are not originally
signed"; the court also granted the defendant's cross motion.
The Supreme Court should not have denied the plaintiff's motion for summary
judgment on the ground that the affidavits submitted in support thereof were not
"originally" signed. CPLR 2101, entitled "Form of papers," specifically states,
at subdivision (e) thereof, that "copies, rather than originals, of all papers,
including . . . affidavits . . . may be served or filed" (CPLR 2101 [e]
[emphasis supplied]). Accordingly, the Supreme Court should have considered the
photocopies of the plaintiff's affidavits submitted in support of the motion for
summary judgment, and addressed the merits thereof (see Billingy v Blagrove, 84
AD3d 848, 849 [2011]; Campbell v Johnson, 264 AD2d 461, 461 [1999]).
Appellate Division Fourth Department
In the Matter of John B. Davie Co., Inc.
March 27, 1981
This is an appeal from an order at Special Term which authorized respondent John
B. Davie Co., Inc. (Davie) to depose Edward P. Storto, president of Storto &
Sons Construction Co., Inc. (Storto) and which directed Storto to produce all
the documents and records which it was required to maintain as a trustee
pursuant to section 75 of the Lien Law. Storto contends that the court [*995]
lacked jurisdiction to enter the order because no proceeding under the Lien Law
has been instituted and such proceeding is now time barred. There is, however,
an action pending between the parties on a claim and counterclaim for breach of
contract arising out of a construction project. The books and ledgers required
to be kept by Storto as trustee under section 75 of the Lien Law are
discoverable in that action pursuant to article 31 of the CPLR. Although Davie
ostensibly brought this matter under the Lien Law, Special Term overlooked the
technical defect in the caption under which the motion was brought and granted
the relief that would have been available to Davie in an article 31 discovery
proceeding under a proper caption. There is ample authority for a court to
overlook such irregularities and deal with the matter on the merits. CPLR 2001
provides as follows: "At any stage of an action, the court may permit a mistake,
omission, defect or irregularity to be corrected, upon such terms as may be
just, or, if a substantial right of a party is not prejudiced, the mistake,
omission, defect or irregularity shall be disregarded." Similarly, CPLR
2101
provides, in relevant part, as follows: "Form of papers * * * (c) Caption. Each
paper served or filed shall begin with a caption setting forth the name of the
court, the venue, the title of the action, the nature of the paper and the index
number of the action if one has been assigned. * * * (f) Defects in form;
waiver. A defect in the form of a paper, if a substantial right of a party is
not prejudiced, shall be disregarded by the court, and leave to correct shall
[**482] be freely given. The party on whom a paper is served shall be deemed to
have waived objection to any defect in form unless, within two days after the
receipt thereof, he returns the paper to the party serving it with a statement
of particular objections." In view of the fact that there was no showing of
prejudice to Storto, substance should be recognized over form, the need for
further delay obviated and the parties moved toward a resolution of their claims
on the merits. (Appeal from order of Monroe Supreme Court — discovery.)
Monitoring New Litigation Involving Your Clients
– Timing Matters
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Izzy Schiller
CourtAlert
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