First Wisconsin Trust Co. v. Hakimian

• Decision Date: 03 March 1997
• Citation: 237 A.D.2d 250,654 N.Y.S.2d 808
• Parties: FIRST WISCONSIN TRUST COMPANY, etc., Respondent, v. Sirous HAKIMIAN, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 808

654 N.Y.S.2d 808

237 A.D.2d 250

FIRST WISCONSIN TRUST COMPANY, etc., Respondent, v. Sirous HAKIMIAN, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

March 3, 1997.

John E. Petiton, New York City, for appellants.

Melvin & Melvin, L.L.P., Syracuse (Holly Salop Wallace, of counsel), for respondent.

Before BRACKEN, J.P., and SANTUCCI, KRAUSMAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage, the defendants Sirous Hakimian and Shamsi Dilmanian Hakimian appeal from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated October 31, 1995, which, inter alia, denied their motion to vacate the plaintiff's judgment of foreclosure.

ORDERED that the order is affirmed, with costs.

Contrary to the contentions of the appellants, the amendment of the caption of the complaint by First Wisconsin Trust Company (hereinafter First Wisconsin) to reflect itself as the plaintiff was proper. Defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice (see, CPLR 104; 2001; 2101[f]; 3025[c]; 3026; see also, Zirinsky v. Violet Mills, Inc., 152 Misc.2d 538, 578 N.Y.S.2d 88). Further, courts have held that captions should be liberally construed and defects in form should be disregarded unless demonstratively prejudicial or timely objection has been made (see, Lunn v. Holiday Corp., 181 A.D.2d 1037, 586 N.Y.S.2d 537; Simpson v. Kenston Warehousing Corp., 154 A.D.2d 526, 546 N.Y.S.2d 148; Homemakers, Inc. v. Williams, 100 A.D.2d 505, 472 N.Y.S.2d 711; Pinto v. House, 79 A.D.2d 361, 364, 436 N.Y.S.2d 733; Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77, 80, 345 N.Y.S.2d 721; Presidential Mgt. Co. v. Farley, 78 Misc.2d 610, 612, 359 N.Y.S.2d 424).

In this case, no prejudice has resulted, and indeed none was claimed at the Supreme Court, from the miscaptioning of the summons and complaint (see, Zirinsky v. Violet Mills, supra, at 541, 578 N.Y.S.2d 88). Thus, in light of the explicit notice in the complaint that it was First Wisconsin that was the plaintiff, the appellants' present argument that they were prejudiced is meritless.

Further, the appellants waived any objection to the pleadings due to their failure to reject them (see, Chiulli v. Coyne, 210 A.D.2d 450, 620 N.Y.S.2d 998; Nassau County v. Incorporated Vil. of Roslyn, 182 A.D.2d 678, 582 N.Y.S.2d 276).

Contrary to the appellants' contentions, First Wisconsin was authorized to commence this mortgage foreclosure action. First Wisconsin is a foreign bank which is not licensed in New York State. Banking Law § 200 authorizes foreign banks to loan money secured by mortgages on property in this State and to commence actions to enforce obligations under those mortgages (see, Banque Arabe...