Sherk v. Sherk

Appellate Division of the Supreme Court of New York

Sherk v. Sherk

37 A.D.3d 1062, 829 N.Y.S.2d 774

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 2007

StatusPublished

Cited by2 cases

This text of 37 A.D.3d 1062 (Sherk v. Sherk) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherk v. Sherk, 37 A.D.3d 1062, 829 N.Y.S.2d 774 (N.Y. Ct. App. 2007).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Joseph ,G. Makowski, J.), entered January 10, 2006 in a personal injury action. The order, among other things, denied the motion of defendant DaimlerChrysler Corporation, doing business as Dodge, for an order dismissing the action in its entirety.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Madonna L. Sherk (plaintiff) when the interior door handle of a vehicle manufactured by DaimlerChrysler Corporation (defendant) unexpectedly broke causing plaintiff to fall to the ground. Plaintiffs timely served a summons with notice upon defendant, but the notice failed to state a sum of money for which judgment may be taken in the event of a default, as required by CPLR 305 (b). We agree with plaintiffs, however, that “the absence of a monetary amount in a notice served with a summons is a correctable irregularity” (Premo v Cornell, 71 AD2d 223, 224 [1979]; see Merwitz v Dental Care Servs., 155 AD2d 748, 750 [1989]; see generally Kolnacki v State of New York, 28 AD3d 1176 [2006], lv granted 30 AD3d 1116 [2006]), “and not a [1063]*1063jurisdictional defect” (Merwitz, 155 AD2d at 750). Present— Gorski, J.P, Fahey, Peradotto, Green and Pine, JJ.

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Appeal from an order of the Supreme Court, Erie County (Joseph ,G. Makowski, J.), entered January 10, 2006 in a personal injury action. The order, among other things, denied the motion of defendant DaimlerChrysler Corporation, doing business as Dodge, for an order dismissing the action in its entirety.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Madonna L. Sherk (plaintiff) when the interior door handle of a vehicle manufactured by DaimlerChrysler Corporation (defendant) unexpectedly broke causing plaintiff to fall to the ground. Plaintiffs timely served a summons with notice upon defendant, but the notice failed to state a sum of money for which judgment may be taken in the event of a default, as required by CPLR 305 (b). We agree with plaintiffs, however, that “the absence of a monetary amount in a notice served with a summons is a correctable irregularity” (Premo v Cornell, 71 AD2d 223, 224 [1979]; see Merwitz v Dental Care Servs., 155 AD2d 748, 750 [1989]; see generally Kolnacki v State of New York, 28 AD3d 1176 [2006], lv granted 30 AD3d 1116 [2006]), “and not a [1063]*1063jurisdictional defect” (Merwitz, 155 AD2d at 750). Present— Gorski, J.P, Fahey, Peradotto, Green and Pine, JJ.

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Bluebook (online)

37 A.D.3d 1062, 829 N.Y.S.2d 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherk-v-sherk-nyappdiv-2007.

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