Gianunzio v. Kelly

9 Citing cases

  1. Conmas v. Tully Central School District

    43 A.D.3d 614 (N.Y. App. Div. 2007)   Cited 1 times

    Accordingly, Supreme Court's denial of summary judgment should be affirmed to this extent. Lastly, because plaintiff did allege filing of a notice of claim and stated that defendant had "recently" refused payment, the complaint's omission of a further allegation that the notice was filed within 90 days of accrual is a technical defect which Supreme Court properly disregarded pursuant to CPLR 2001 ( see Matter of Ciampa v Mori, 38 AD3d 1074, 1075; Gianunzio v Kelly, 90 AD2d 623, 624; see also Cave v Kollar, 2 AD3d 386, 388).

  2. Matter of Stephentown Concerned v. Herrick

    223 A.D.2d 862 (N.Y. App. Div. 1996)   Cited 12 times

    Here, it sued in its association name alone. Such a defect is, however, not jurisdictional ( see, Sackman v Maritas, 156 Misc.2d 939) and, given that respondents have failed to show any prejudice, the court may disregard any irregularity in the pleading ( see, Gianunzio v Kelly, 90 A.D.2d 623; see also, Concerned Citizens v State of New York, 140 A.D.2d 842). In any event, we note that the remaining individual petitioners clearly have standing.

  3. Fellows v. Fox

    186 A.D.2d 1051 (N.Y. App. Div. 1992)

    The treasurer of that association, who had the authority to sue on behalf of the association (General Associations Law § 12), was a named plaintiff, and defendant was not prejudiced by plaintiffs' failure to plead the association as a party. In those circumstances, the trial court properly disregarded the technical defects in the pleading (see, Gianunzio v Kelly, 90 A.D.2d 623, 624; see also, CPLR 2001).

  4. Concerned Citizens of Albany-Shaker Road v. State

    140 A.D.2d 842 (N.Y. App. Div. 1988)   Cited 13 times

    The random sampling of deeds and drawings from six lots, attached to the complaint, does not satisfy the requirement that the complaint describe with some particularity the land at issue (see, RPAPL 1515 [a]; [2]). Furthermore, as the town observes, the complaint does not comport with General Associations Law § 12 (see also, CPLR 1025) in that the action has not been brought either by the president or treasurer of the unincorporated association, or in the names of all its individual members (see, Matter of International Union United Auto. Aircraft Agric. Implement Workers, 284 App. Div. 835); however, that deficiency appears correctible (see, Gianunzio v Kelly, 90 A.D.2d 623, 624).

  5. Waterview Condo. v. Mendel Indig & M. Feldman Realty, LLC

    2024 N.Y. Slip Op. 33366 (N.Y. Sup. Ct. 2024)

    This is especially true where no prejudice has accrued to. any party as a result of the name listed on the pleadings (Stephentown Concerned Citizens v. Herrick, 223 A.D.2d 862, 636 N.Y.S.2d 470 [3rd Dept., 1996], Gianunzio v. Kelly, 90 A.D.2d 623, 456 N.Y.S.2d 227 [3rd Dept., 1982]), Thus, a corrected pleading naming proper parties surely satisfies the requirements necessary to consider the motion (see, Chinuch v. Congregation Lubavitch Inc., 82 Misc.3d 29, 204 N.Y.S.3d 380 [Appellate Term 2d Dept., 2024]).

  6. Doe v. Watchtower Bible & Tract Soc'y of N.Y.

    2023 N.Y. Slip Op. 34072 (N.Y. Sup. Ct. 2023)   Cited 2 times
    In RKJW1 Doe, the plaintiff alleged that the defendant Governing Body of the Jehovah's Witnesses (hereinafter the Governing Body) "is a group of eight individuals, that decides all actions related to the operation of the hierarchical religious entity known as the Watchtower Bible and Tract Society of New York, Inc. ("Watchtower"), a duly incorporated religious entity" (id. at *2).

    Naming the entity as a defendant without specifying the particular officers of the group in the caption, nor claiming their particular role in the group, is not fatal, especially where Defendant Governing Body has produced no evidence of prejudice in the record due to Plaintiff naming the Governing Body as an entity directly. See Gianunzio v Kelly, 90 A.D.2d 623, 624 [3d Dept 1982]. Moreover, The Chairmanship of the Governing Body rotates annually according to an alphabetical arrangement (see NYSCEF Doc # 28), thus identifying the proper officer to name is not easily done.

  7. Brooklyn Heights Ass'n, Inc. v. N.Y. State Urban Dev. Corp.

    58 Misc. 3d 1222 (N.Y. Sup. Ct. 2018)   Cited 1 times

    Several cases, including Concerned Citizens of Albany–Shaker Road v. New York (140 AD2d 842 [3rd Dept 1988] ), to which respondents cite, indicate that this is a curable defect. Those cases, however, involve situations in which the unincorporated association sues on its own behalf, or in which the treasurer or president sues on behalf of the association but does not state that he or she is the treasurer or the president (Gianunzio v. Kelly , 90 AD2d 623 [1st Dept 1982] ). The Court has excerpted a longer passage.

  8. Toll Land V Ltd. P'ship v. Planning Bd. of the Vill. of Tarrytown

    49 Misc. 3d 662 (N.Y. Sup. Ct. 2015)   Cited 2 times

    ates may maintain such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common.” However, the failure of an unincorporated association to appear by its president or treasurer has been held to be a curable pleading defect (see Miller v. Student Assoc. of State University of New York, 75 A.D.2d 843, 427 N.Y.S.2d 860 [2d Dept.1980] [“the failure to designate the president in his representative capacity as the defendant is an irregularity which may be corrected in the absence of prejudice to a right of any party”]; Concerned Citizens of Albany–Shaker Rd. v. State, 140 A.D.2d 842, 843, 528 N.Y.S.2d 230 [3d Dept.1988] [“the complaint does not comport with General Associations Law § 12 in that the action has not been brought either by the president or treasurer of the unincorporated association, or in the names of all its individual members; however, that deficiency appears correctible ” (emphasis added and citations omitted) ]; see also Gianunzio v. Kelly, 90 A.D.2d 623, 624, 456 N.Y.S.2d 227 [3d Dept.1982] [“Assuming, arguendo, that plaintiffs were required to plead their legal status as treasurer and unincorporated association, defendant has failed to establish that he has been prejudiced by plaintiffs' omission. In the absence of such prejudice, the court may disregard any irregularity in this pleading”] ).

  9. SUNG HYUN HWANG v. JACKSON AVE. REALTY, LLC

    2011 N.Y. Slip Op. 30468 (N.Y. Sup. Ct. 2011)

    Mr. Capellan, in his opposing affidavit, states that he is the treasurer of The Echelon Unit Owners Association, and that all members of said Association are plaintiffs in this action. These pleading defects, however, cannot be cured by an opposing affidavit ( see generally Gianunzio v Kelly, 90 AD2d 623, 624).