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State Farm Mutual Automobile Insurance Company As Subrogee of Luis Gomez v. American Transit Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 26, 2011

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS SUBROGEE OF LUIS GOMEZ,
APPELLANT,
v.
AMERICAN TRANSIT INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered February 18, 2009.

State Farm Mut. Auto. Ins. Co. v American Tr. Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 26, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The order denied petitioner's motion, in effect, to set aside a prior order denying a petition to confirm an arbitrator's award, with leave to petitioner to commence a new special proceeding to confirm the arbitrator's award.

ORDERED that the order is reversed, without costs, petitioner's motion, in effect, to set aside the prior order denying the petition to confirm the arbitrator's award is granted, the petition is reinstated, the proof of service is deemed filed nunc pro tunc and the matter is remitted to the Civil Court for all further proceedings.

In this proceeding pursuant to CPLR 7510 to confirm an arbitrator's award, the Civil Court denied the petition on the ground that no proof of service of the petition had been filed. Thereafter, petitioner moved, in effect, to set aside the order denying the petition. In support of the motion, petitioner's attorney alleged that his office had inadvertently failed to file the affidavit of service, a copy of which he annexed to the moving papers. The Civil Court denied the motion, with leave to petitioner to commence a new special proceeding to confirm the arbitrator's award.

The Civil Court erred in denying petitioner's motion. Petitioner's failure to file proof of service of the petition did not warrant the dismissal of the petition (see CCA 409; Discover Bank v Eschwege, 71 AD3d 1413 [2010]), since the defect was a non-jurisdictional irregularity that caused no prejudice (see Discover Bank, 71 AD3d at 1413; Koslowski v Koslowski, 251 AD2d 294 [1998]; see also Globe Med. Care O.L.P.C. v Travelers Ins. Co., 26 Misc 3d 129[A], 2010 NY Slip Op 50020[U] [App Term, 1st Dept 2010]). Under the circumstances presented, the Civil Court should have permitted the filing of proof of service nunc pro tunc.

Accordingly, the order is reversed, petitioner's motion, in effect, to set aside the previous order is granted, the petition is reinstated, the proof of service is deemed filed nunc pro tunc and the matter is remitted to the Civil Court for all further proceedings.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: April 26, 2011

20110426

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