Miller v. Student Ass'n of State University

75 A.D.2d 843, 427 N.Y.S.2d 860, 1980 N.Y. App. Div. LEXIS 11450

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1980
• Status: Published

Opinion

In an action on a contract, defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated June 15, 1979, as denied its cross motion to dismiss the complaint. Order affirmed insofar as appealed from, with $50 costs and disbursements. Defendant, an unincorporated association, cross-moved to dismiss the complaint on the ground that it is being sued as a legal entity rather than by its president or treasurer. Special Term found that the defendant association has made a general appearance in the action, that the summons and complaint were served upon the president of the association and that the defendant was fairly apprised that its president is the party the action is intended to affect. In light of these findings, the failure to designate the president in his representative capacity as the defendant is an irregularity which may be corrected in the absence of prejudice to a right of any party. (See Matter of Motor Haulage Co. [Teamsters’ Union], 298 NY 208.) Accordingly, Special Term properly denied the cross motion. Cohalan, J. P., Margett, O’Connor and Weinstein, JJ., concur.