Mastandrea v. Pineiro

190 A.D.2d 841, 594 N.Y.S.2d 49, 1993 N.Y. App. Div. LEXIS 1632

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1993
• Status: Published

Opinion

— In an action to recover damages for personal injuries, the plaintiff Catherine Mastandrea appeals from an order of the Supreme Court, Nassau County (Molloy, J.), dated October 2, 1990, which deemed a motion denominated as one to dismiss the complaint, to be a motion for leave to withdraw a notice of appearance and an answer served on behalf of the defendant Anthony Pineiro, and granted that relief.

Ordered that the order is affirmed, with costs.

The Supreme Court did not err in declaring the motion denominated as one to dismiss the complaint to be a motion for leave to withdraw the notice of appearance and answer served and filed by the firm of Fiedelman & Hoefling on behalf of the defendant Anthony Pineiro, without first notifying the plaintiff of its intention to do so. The movant included a "general relief’ clause in the motion and the proof offered supported a motion to withdraw the notice of appearance and answer. Thus, the plaintiff was not prejudiced by the movant’s omission in specifically demanding leave to withdraw its notice of appearance and answer (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2214:5, at 84).

Furthermore, upon converting the motion the Supreme Court properly granted the alternate relief. The representation of the named defendant Anthony Pineiro by the firm Fiedelman & Hoefling was based on the mistaken belief that the insurance company which retained the firm in fact insured the defendant Anthony Pineiro. The plaintiff offered no support for her belief that Anthony Pineiro was so insured. Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.