Lack of an original signature on a pleading, and leave to interpose an amended answer.

Practice point: The Appellate Division held that the Supreme Court should not have denied the plaintiff's motion for summary judgment on the ground that the affidavits submitted in support thereof were not originally signed. CPLR 2101(e), entitled "Form of papers," specifically states that copies, rather than originals, of all papers, including affidavits, may be served or filed.

Student note: The Appellate Division also held that the Supreme Court improvidently exercised its discretion in granting the defendant's motion for leave to interpose an amended answer so as to assert an additional counterclaim seeking damages allegedly incurred by the defendant as a result of a burglary at the subject premises in 2009. Pursuant to CPLR 3025(b), leave to amend a pleading should be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Here, pursuant to the terms of the lease, the defendant may only seek to recover for damage or loss to its business from the plaintiff if it can truthfully allege that the plaintiff's negligence caused or contributed to that damage or loss and that the defendant was not insured for that damage or loss. In an affidavit of the defendant's vice-president, which was submitted in support of the cross motion, he specifically stated that they had insurance covering the burglary losses, and that they were reimbursed by their carrier. This admission, together with the lease provision, rendered the defendant's proposed counterclaim patently devoid of merit.

Case: Rechler Equity B-1, LLC v. AKR Corp., NY Slip Op 05813 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: E-mails can constitute a binding fee arrangement.