Peili Lin v Misrahi Realty Corp.

[*1] Peili Lin v Misrahi Realty Corp. 2013 NY Slip Op 50147(U) Decided on February 1, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570961/12.

Peili Lin, Plaintiff-Respondent, - -

against

Misrahi Realty Corp., Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.), entered May 18, 2012, after inquest, in favor of plaintiff and awarding her damages in the principal sum of $10,000. Defendant also purports to appeal from an order (same court and Judge), dated March 21, 2012, which denied its preanswer motion to dismiss the amended complaint.

Per Curiam.

Judgment (Nancy M. Bannon, J.), entered May 18, 2012, insofar as appealable, affirmed, without costs.

Where, as here, the judgment appealed from was issued upon the appellant's default, review is limited to matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 [1967], rearg denied 19 NY2d 862 [1967]; Matter of Paulino v Camacho, 36 AD3d 821, 822 [2007]). Accordingly, in this case, review is limited to the denial of defendant's preanswer motion to dismiss the amended complaint. On the merits, the dismissal motion was properly denied. To the extent that the motion was not barred by the single motion rule (cf. Swift v New York Medical College, 48 AD3d 671 [2008]), it lacked substantive merit since the amended complaint, which was identical to plaintiff's original pleading save for the omission of the individual defendant dismissed from the action, fully conformed with the court's January 18, 2012 order. Plaintiff's service of an amended summons upon the remaining corporate defendant, while not required, constituted a mere irregularity (see CPLR 2001) that caused the corporate defendant — already a party to the action subject to the court's jurisdiction — no discernible prejudice.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013