In this negligence action stemming from an auto-bicycle collision, the defendants failed to submit a copy of the defendant-driver's deposition transcript in support of their motion to dismiss. However, the moving papers included the attorney's affirmation stating that the defendants were submitting the transcript as an exhibit. In addition, the defendants cited to the deposition testimony, and based their arguments on the transcript. The defendants submitted a copy of the transcript with their reply papers in further support of the motion, and their attorney affirmed that the failure to submit the transcript with the original papers was a clerical error. Since the plaintiffs did not assert that they were prejudiced by the omission, and the defendants ultimately submitted the transcript, the court should have ignored the defendants' failure to submit the transcript in the original papers, pursuant to CPLR 2001.
A.B. v. Waring, NY Slip Op 03671 (2d Dep't July 5, 2023)
