Dinstber v. Allstate Ins. Co.

• Decision Date: 14 June 2012
• Citation: 96 A.D.3d 1198,2012 N.Y. Slip Op. 04805,946 N.Y.S.2d 693
• Parties: George C. DINSTBER III, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1198

946 N.Y.S.2d 693

2012 N.Y. Slip Op. 04805

George C. DINSTBER III, Appellant,

v.ALLSTATE INSURANCE COMPANY, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

June 14, 2012.

George C. Dinstber III, Cincinnatus, appellant pro se.

Goldberg & Segalla, L.L.P., Buffalo (Bryan D. Richmond of counsel), for respondent.

Before: ROSE, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.

STEIN, J.

Appeal from an order of the Supreme Court (Rumsey, J.), entered October 26, 2010 in Cortland County, which, among other things, denied plaintiff's motion to vacate a prior order.

Plaintiff commenced this action in July 2008 for, among other things, breach of contract arising out of a motor vehicle accident in January 2002. Although defendant timely served an answer, plaintiff rejected it because it was not verified. Defendant promptly moved for an extension of time to serve the answer, and plaintiff cross-moved for a default judgment. In January 2009, Supreme Court granted defendant's motion, directed defendant to serve and file “the complete original Verified Answer dated September 4, 2008,” with proof of service, within 30 days, and denied plaintiff's cross motion. After this Court affirmed Supreme Court's January 2009 order (75 A.D.3d 957, 958–959, 906 N.Y.S.2d 636 [2010] ), defendant moved for partial summary judgment. Plaintiff then moved, by order to show cause dated September 14, 2010, for leave to renew his motion for a default judgment based on defendant's failure to comply with the January 2009 order, to vacate the January 2009 order and for a default judgment against defendant as to liability, among other things. Supreme Court denied plaintiff's motion, deemed defendant's failure to comply with the January 2009 order to be corrected, nunc pro tunc, so long as defendant paid plaintiff's costs in the amount of $850,¹ and scheduled a return date for defendant's summary judgment motion.² This appeal by plaintiff ensued.

We affirm. It is well settled that a court may, at any stage of an action, “permit a mistake, omission, defect or irregularity, including ... [a] mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, [disregard] the mistake, omission, defect or irregularity” (CPLR 2001; see Goldenberg v. Westchester County Health Care Corp., 16 N.Y.3d 323, 327–328, 921 N.Y.S.2d 619, 946 N.E.2d 717 [2011];Ruffin v. Lion Corp., 15 N.Y.3d 578, 582–583, 915 N.Y.S.2d 204, 940 N.E.2d 909 [2010];Johns v. Van Brunt Motors, Inc., 89 A.D.3d 1188, 1189–1190, 932 N.Y.S.2d 568 [2011] ). Here, although defendant timely served plaintiff with another copy of the answer in February 2009, it failed to file the original answer and proof of service with the Cortland County Clerk's office until approximately one year later, when it discovered its error. When defendant attempted to correct its filing error, the affidavits of service accompanying each copy of the answer contained additional errors. Furthermore, plaintiff pointed out in his September 2010 order to show cause that the copy of the answer served on him in February 2009 was missing a page.

Contrary to plaintiff's contention, Supreme Court's sanction for defendant's failure to strictly comply with its January 2009 order in a timely manner was not an abuse of the court's discretion. In denying plaintiff's motion, Supreme Court correctly examined all relevant factors including, among others, the lack of any prejudice to plaintiff resulting from the foregoing errors. In determining that plaintiff's ability to prosecute his claim was not unduly compromised, Supreme Court considered that he had failed to demand service of a complete answer ³—and, in fact, took no action with regard to defendant's filing and service errors until more than one year after they occurred—and that neither party served discovery demands during the pendency of plaintiff's first appeal to this Court. The record further reflects that the parties proceeded with their respective motions in late 2010. Moreover, Supreme Court took into account that defendant'serrors caused some “unnecessary delay, confusion and motion practice,” by requiring defendant's counsel to pay plaintiff's costs and expenses incurred in bringing the instant motion. In view...