| Avalon Gardens Rehabilitation & Health Care Ctr., LLC vMorsello |
| 2012 NY Slip Op 05485 [97 AD3d 611] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Avalon Gardens Rehabilitation & Health Care Center, LLC,Appellant, v Frank Morsello, Defendant, and Alicia Pititto et al.,Respondents. |
—[*1] Long, Tuminello, Besso, Seligman, Werner & Sullivan, LLP, Bay Shore, N.Y. (Karen S.Svendsen of counsel), for respondent Alicia Pititto. Michael Morsello, Kings Park, N.Y., respondent pro se.
In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Costello,J.), dated May 4, 2010, as granted those branches of the motion of the defendant Alicia Pitittowhich were for summary judgment dismissing the causes of action alleging breach of contractand fraudulent conveyance insofar as asserted against her and that branch of the motion of thedefendant Michael Morsello which was for summary judgment dismissing the cause of actionalleging fraudulent conveyance insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The defendant Alicia Petitto met her prima facie burden of establishing her entitlement tojudgment as a matter of law dismissing the breach of contract and fraudulent conveyance causesof action insofar as asserted against her (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 559 [1980];Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). Further, thedefendant Michael Morsello (hereinafter Morsello) met his prima facie burden of establishing hisentitlement to judgment as a matter of law dismissing the fraudulent conveyance cause of actioninsofar as asserted against him. The plaintiff failed to raise a triable issue of fact in opposition tothose showings (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckermanv City of New York, 49 NY2d at 562).
We reject the plaintiff's contention that the Supreme Court erred in considering Morsello'smotion for summary judgment on the merits. Morsello, in his initial moving papers, rather thanannexing his answer as an exhibit, inadvertently annexed the answer of codefendant FrankMorsello. This problem was rectified in the reply affirmation of Morsello's counsel, whichannexed a copy of the correct pleading as an exhibit. While CPLR 3212 (b) requires that motionsfor summary judgment be supported by, inter alia, a copy of the pleadings, CPLR 2001 permits a[*2]court, "[a]t any stage of an action," to disregard a party'smistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced. Here,no substantial right of the plaintiff was prejudiced by the corrective inclusion of a copy ofMorsello's answer with his reply affirmation, and the Supreme Court properly exercised itsdiscretion under CPLR 2001 to consider his summary judgment motion on the merits (cf. Crossett v Wing Farm, Inc., 79AD3d 1334 [2010]; Breytman vOlinville Realty, LLC, 46 AD3d 484, 485 [2007]; Mahone v Washington, 17 AD3d 1059 [2005]). The circumstancespresented in this action are distinguishable from those in other cases, where the moving partiesaltogether failed to submit a copy of the pleadings (see Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 84 AD3d1153, 1154 [2011]; LibertyDoorworks, Inc. v Baranello, 83 AD3d 1011 [2011]; Matter of Fraternal Order of Eagles v Board of Assessors, 73 AD3d770 [2010]).
Accordingly, the Supreme Court properly granted those branches of Pititto's motion whichwere for summary judgment dismissing the breach of contract and fraudulent conveyance causesof action insofar as asserted against her, and also properly granted that branch of Morsello'smotion which was for summary judgment dismissing the fraudulent conveyance cause of actioninsofar as asserted against him. Dillon, J.P., Dickerson, Hall and Sgroi, JJ., concur.