Sullivan v. Murray

Appellate Division of the Supreme Court of New York

Sullivan v. Murray

136 A.D.2d 840, 523 N.Y.S.2d 682, 1988 N.Y. App. Div. LEXIS 410

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

DecidedJanuary 21, 1988

StatusPublished

This text of 136 A.D.2d 840 (Sullivan v. Murray) 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

Sullivan v. Murray, 136 A.D.2d 840, 523 N.Y.S.2d 682, 1988 N.Y. App. Div. LEXIS 410 (N.Y. Ct. App. 1988).

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Opinion

Mahoney P. J.

Appeal from an order of the Supreme Court (Swartwood, J.), entered May 5, 1986 in Tompkins County, which denied defendant’s motion to dismiss the complaint.

Plaintiff commenced an action against defendant which was indexed under number 84-177. The action was dismissed for failure to prosecute. Supreme Court noted that the dismissal was not on the merits. Plaintiff recommenced the action and used the same index number on the pleadings served on defendant and those filed with the County Clerk’s office. Subsequently, the County Clerk advised plaintiff that a new index number was necessary. Plaintiff then applied for and received a new number, and advised the court and defendant of the new number. Defendant moved to dismiss the action on the ground that the pleadings were served with one index number and proof of service was filed under another index number. Supreme Court denied the motion and this appeal ensued.

Defendant’s contention is meritless and Supreme Court’s order should be affirmed. Defendant offers no legal support for her novel contention that Supreme Court is without authority to allow plaintiff to change an inaccurate index number placed on the pleadings. Supreme Court properly exercised the discretion provided by CPLR 2001 to allow plaintiff to correct a nonprejudicial mistake.

Order affirmed, without costs. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.

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Mahoney P. J.

Appeal from an order of the Supreme Court (Swartwood, J.), entered May 5, 1986 in Tompkins County, which denied defendant’s motion to dismiss the complaint.

Plaintiff commenced an action against defendant which was indexed under number 84-177. The action was dismissed for failure to prosecute. Supreme Court noted that the dismissal was not on the merits. Plaintiff recommenced the action and used the same index number on the pleadings served on defendant and those filed with the County Clerk’s office. Subsequently, the County Clerk advised plaintiff that a new index number was necessary. Plaintiff then applied for and received a new number, and advised the court and defendant of the new number. Defendant moved to dismiss the action on the ground that the pleadings were served with one index number and proof of service was filed under another index number. Supreme Court denied the motion and this appeal ensued.

Defendant’s contention is meritless and Supreme Court’s order should be affirmed. Defendant offers no legal support for her novel contention that Supreme Court is without authority to allow plaintiff to change an inaccurate index number placed on the pleadings. Supreme Court properly exercised the discretion provided by CPLR 2001 to allow plaintiff to correct a nonprejudicial mistake.

Order affirmed, without costs. Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur.

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Bluebook (online)

136 A.D.2d 840, 523 N.Y.S.2d 682, 1988 N.Y. App. Div. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-murray-nyappdiv-1988.