| Matter of United Servs. Auto. Assn. v Kungel |
| 2010 NY Slip Op 03043 [72 AD3d 517] |
| April 15, 2010 |
| Appellate Division, First Department |
| In the Matter of United Services Automobile Association,Respondent, v Max Kungel, Appellant. |
—[*1] Paul F. McAloon, New York, for respondent.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered May 18, 2009, whichgranted respondent's motion to reargue a prior order, same court and Justice, entered February26, 2009, denying his motion to dismiss the petition seeking to stay arbitration, and, uponreargument, adhered to the prior order, unanimously affirmed, without costs.
The court correctly held that CPLR 2001 (as amended by L 2007, ch 529), applied, giving itthe discretion to permit petitioner to correct its procedural mistake in commencement of itsproceeding to stay the arbitration demanded by respondent. Although petitioner erroneouslyserved the petition and notice of petition on respondent one day prior to purchasing an indexnumber and filing process with the court (see CPLR 304, 306-a, 306-b; see also Harris v Niagara Falls Bd. ofEduc., 6 NY3d 155, 158 [2006]; Matter of Gershel v Porr, 89 NY2d 327, 332[1996]), the recent amendment to CPLR 2001 was enacted expressly " 'to fully foreclosedismissal of actions for technical . . . non-prejudicial defects' in commencement. . . regardless of whether the defendant objected in a timely and proper manner"(John M. Horvath, D.C., P.C. vProgressive Cas. Ins. Co., 24 Misc 3d 194, 200 [Nassau Dist Ct 2009], quoting 2007Rep of Advisory Comm on Civ Prac, at 24-25, reprinted in 2007 McKinney's Session Laws ofNY, at 2207, 2219), so long as the "mistake, omission, defect or irregularity, including thefailure to purchase or acquire an index number or other mistake in the filing process" does notprejudice a substantial right of a party (CPLR 2001). Petitioner otherwise satisfied all statutoryfiling deadlines, and therefore its petition was timely (see CPLR 306-b, 7503 [c]; seealso National Union Fire Ins. Co. v Hugee, 173 Misc 2d 619, 620-622 [Sup Ct, NY County1997]).
Respondent's contention that the procedural irregularities here deprived the court of personaljurisdiction over him has been waived as he failed to raise this argument until he submitted hisreply in support of his motion for reargument (see CPLR 3211 [e]; see e.g. Matter of Ballard v HSBC BankUSA, 6 NY3d 658, 664-665 [2006]). In any event, the record shows that respondentreceived notice of the petition to stay arbitration through his attorney at the correct address oneday prior to the proceeding being commenced in Supreme Court, and he has suffered noprejudice (compare Parker v Mack, 61 NY2d 114, 117-119 [1984]; Matter of MRC Receivables Corp. vTaylor, 57 AD3d 1000, 1001-1002 [2008]; Matter of Lamb v Mills, 296 AD2d[*2]697, 698-699 [2002], lv denied 99 NY2d 501[2002]).
We have considered respondent's remaining contentions and find them unavailing.Concur—Andrias, J.P., McGuire, Moskowitz, Acosta and DeGrasse, JJ.