Berman v. Szpilzinger

172 A.D.2d 304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered March 22, 1990, which denied defendant’s motion for a default judgment on the counterclaims, unanimously affirmed, with costs.

While the attorneys disputed whether plaintiff had served a reply to defendant’s counterclaims by mail, the issue was immaterial, as any such failure was at worst inadvertent. Where the omission to reply, if any, caused defendant no prejudice and was corrected by plaintiff upon the first mention thereof to him, the omission should be excused and the counterclaims should proceed to determination on the merits (Stevenson Corp. v Dormitory Auth., 112 AD2d 113, 118). Concur—Sullivan, J. P., Rosenberger, Kupferman, Asch and Kassal, JJ.