MAKHNEVICH v. BOARD OF MANAGERS OF 2900 OCEAN CONDOMINIUM (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 006) 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243 were read on this motion to STRIKE PLEADINGS.

In this dispute between a condominium unit owner and the condominium board (and the board's managing agent), this court issued a decision and order in July 2021 that granted defendants’ motions to dismiss plaintiff's claims against them. (See Makhnevich v. Board of Managers of 2900 Ocean Condominium, 2021 NY Slip Op 50679[U] [Sup Ct, NY County July 21, 2021].) Plaintiff then moved, in effect, to reargue or renew. This court denied that motion in its entirety by decision and order issued in November 2021. (See NYSCEF No. 229.)

Defendants served notice of entry of this court's November 2021 order the same day it was entered. (See NYSCEF No. 230.) The case caption in defendants’ notice of entry misspelled plaintiff's first name by one letter (as “Stacey,” rather than “Stacy”). (Compare NYSCEF Nos. 229 and 230.) Two days later, plaintiff served notice of entry herself; this notice spelled her name correctly. (See NYSCEF No. 231.) And in December 2021, plaintiff noticed an appeal from this court's November 2021 order. (See NYSCEF No. 244.)

Plaintiff now moves to strike defendants’ notice of entry based on the incorrect spelling of her name. The motion is without merit for three independent reasons.

First, the misspelling of plaintiff's name in the notice of entry did not prejudice plaintiff's rights. Even assuming the spelling of the parties’ names in the case caption of the appealable paper on motion sequence 005 could materially affect plaintiff's ability to appeal, it was this court's November 2021 order—not defendants’ notice of entry of that order—that constituted the appealable paper. And this court's order spelled plaintiff's name correctly. (See NYSCEF No. 229.)

Second, even if the spelling of plaintiff's name in the case caption of defendants’ notice of entry could impair plaintiff's ability to appeal from this court's order (and it cannot), plaintiff herself remedied any possible prejudice by serving her own notice of entry (see NYSCEF No. 231), as she is entitled to do (see CPLR 5513 [a]). Plaintiff's expressed concerns about the effect of defendants’ notice of entry on plaintiff's ability to appeal are moot.

Third, plaintiff's motion is based principally on a concern that a discrepancy between the spelling of her name in defendants’ notice of entry and the proper spelling of her name in a notice of appeal would lead the County Clerk's Office to decline to accept her notice of appeal. (See NYSCEF No. 233 at ¶ 11.) But plaintiff succeeded in filing her notice of appeal without it being rejected based on the spelling of her name in the case caption. (See NYSCEF No. 244.) Plaintiff's motion is moot for this reason as well.

Accordingly, it is hereby

ORDERED that plaintiff's motion to strike is denied.

Gerald Lebovits, J.