Jade Manufacturers Outlet, Inc. v. Transamerica Insurance

237 A.D.2d 104, 655 N.Y.S.2d 342, 1997 N.Y. App. Div. LEXIS 2134

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Stuart Cohen, J.), entered August 15, 1996, which, in an action to recover under an insurance policy for water damage, granted defendant insurer’s motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

The motion court properly deemed defendant’s failure to comply with the mailing requirements of CPLR 2103 (b) (2) as an irregularity to be disregarded under CPLR 2001. After challenging the motion to dismiss solely on the ground that the moving papers had been improperly mailed from New Jersey (CPLR 2103 [f| [1]), plaintiff chose to adjourn the matter in order to submit opposition on the merits in preference to the court’s alternative option of immediately granting defendant’s motion on default in order to provide plaintiff an immediate avenue for appeal. National Org. for Women v Metropolitan Life Ins. Co. (70 NY2d 939) is distinguishable, in that there the service of papers was jurisdictional (see, Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637). Concur—Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.