Correcting a mistake in assembling a pleading.

Practice point: The Supreme Court properly considered the defendant’s motion for summary judgment on the merits. In his initial moving papers, rather than annexing his answer as an exhibit, he inadvertently annexed the answer of one of the codefendants. This problem was rectified in the reply affirmation of his counsel, who annexed a copy of the correct pleading as an exhibit.

Student note: While CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, 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 of  the defendant’s answer with his reply affirmation, and the Supreme Court properly exercised its discretion to consider the motion in its merits.

Case:  Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, NY Slip Op 05485 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Avoiding dismissal for failure to proceed.