Gamiel v. Sullivan & Liapakis

259 A.D.2d 385, 687 N.Y.S.2d 129, 1999 N.Y. App. Div. LEXIS 2842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1999
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about September 23, 1998, which dismissed the complaint as against defendant-respondent Sullivan & Liapakis, P. C., due to plaintiffs failure to properly commence the action in accordance with the file and serve requirements of CPLR 304, 306-a and 306-b, unanimously reversed, on the law, without costs, the motion to dismiss denied, and the original summons deemed amended nunc pro tunc.

Plaintiff did not violate the commencement-by-filing statute and dismissal of her legal malpractice action was therefore unwarranted. After duly filing her summons and complaint with the New York County Clerk’s Office, plaintiff altered only the attorney’s name on the summons and complaint before serving defendant-respondent and subsequently refiling the altered summons and complaint. In the absence of substantial prejudice to defendant-respondent, this constituted a minor technical irregularity or defect that should have been disregarded or corrected by the court (CPLR 2001). Moreover, these circumstances are distinguishable from those in Matter of Gershel v Porr (89 NY2d 327), in that this plaintiff did not abandon her original filing and attempt to commence her action anew. Concur — Williams, J. P., Tom, Wallach and Mazzarelli, JJ.