Leary v. Bendow

• Decision Date: 01 May 2018
• Docket Number: Index 150773/12,6427N
• Citation: Leary v. Bendow, 161 A.D.3d 420, 76 N.Y.S.3d 519 (N.Y. App. Div. 2018)
• Parties: Kristine LEARY, et al., Plaintiffs–Respondents, v. Carolyn BENDOW, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 420

76 N.Y.S.3d 519

Kristine LEARY, et al., Plaintiffs–Respondents,

v.Carolyn BENDOW, et al., Defendants–Appellants.

6427N

Index 150773/12

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

ENTERED: MAY 1, 2018

Picciano & Scahill, P.C., Bethpage (Andrea E. Ferrucci of counsel), for appellants.

Law Offices of Joseph F. Dunne, Rockville Centre (Joseph F. Dunne of counsel), for respondents.

Renwick, J.P., Tom, Andrias, Webber, Kahn, JJ.

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered November 10, 2016, which granted plaintiffs' motion to renew and, upon renewal, denied defendants' motion to strike the note of issue, unanimously affirmed, without costs.

Although plaintiffs failed to include a copy of defendants' original motion to strike with the renewal motion, this did not violate CPLR 2214(c) because the original motion had been electronically filed and therefore was available to the parties and the court (see also Studio A Showroom, LLC v. Yoon, 99 A.D.3d 632, 952 N.Y.S.2d 879 [1st Dept. 2012] ). There is no evidence that the record was not sufficiently complete to allow the court to render a decision on the renewal motion and to exercise its discretion in considering any improperly submitted document (see Washington Realty Owners, LLC v. 260 Wash. St. LLC, 105 A.D.3d 675, 964 N.Y.S.2d 137 [1st Dept. 2013] ; Loeb v. Tanenbaum, 124 A.D.2d 941, 942, 508 N.Y.S.2d 688 [3d Dept. 1986] ["under CPLR 2214 ©, the court may refuse to consider improperly submitted" documents (emphasis added) ] ).

In any event, the court did not improvidently exercise its discretion in granting renewal (see CPLR 2221[e] ). Unbeknownst to the court at the time it decided the original motion, the parties had entered a stipulation agreeing to adjourn the motion. Both parties concede the motion was accidentally submitted to the court in contravention of the stipulation. Thus, the equities of this matter, and the interests of justice, were properly served by permitting renewal, especially because denial would defeat substantial fairness (see Jorge v. Conlon, 134 A.D.3d 480, 19 N.Y.S.3d 891 [1st Dept. 2015] ; Scott v. Brickhouse, 251 A.D.2d 397, 675 N.Y.S.2d 542 [2d Dept. 1998] ; Metcalfe v. City of New York, 223 A.D.2d 410, 411, 636 N.Y.S.2d 60 [1st Dept. 1996] ). Finally, in denying defendants' motion to strike upon renewal, the court was permitted to take judicial notice of the so-ordered stipulations where both parties agreed that discovery had...