Matter of Great Seneca Fin. Corp. v Khanna (2008 NY Slip Op 50302(U))

Matter of Great Seneca Fin. Corp. v Khanna

2008 NY Slip Op 50302(U) [18 Misc 3d 138(A)]

Decided on February 13, 2008

Appellate Term, Second Department

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

As corrected in part through March 4, 2008; it will not be published in the printed Official Reports.

In the Matter of the Arbitration Between Great Seneca Financial Corporation Assignee of MBNA America Bank, N.A., Appellant,

against

Satish Khanna, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered September 5, 2006. The order denied petitioner's motion for leave to renew its petition for confirmation of an arbitration award.

Order reversed without costs, petitioner's motion for leave to renew granted, upon renewal, petition to confirm an arbitration award granted, and matter remanded to the court below for entry of a judgment thereon.

Petitioner commenced the instant proceeding to confirm an arbitration award (see CPLR 7510). The lower court denied the unopposed petition because the affidavit in support of the petition had been notarized by a Maryland notary public and was not accompanied by a certificate of conformity, in accordance with CPLR 2309 (c). Shortly thereafter, petitioner moved for leave to renew the petition, annexing the requisite certificate of conformity. The unopposed motion was denied.

Because a party's failure to comply with the provisions of CPLR 2309 (c) can be easily corrected nunc pro tunc (Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833 [1989]) and does not prejudice "a substantial right of a party" (CPLR 2001, 2101 [f]), it is "not a fatal defect" but rather a mere defect in form (Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]; Sparaco v Sparaco, 309 AD2d 1029 [2003]). [*2]Accordingly, in the absence of any specific objection by respondent to the omission of the certificate of conformity, the defect should have been disregarded (see CPLR 2001, 2101 [f]; cf. Raytsin v Discover Bank, N.A., 6 Misc 3d 48 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, the motion for leave to renew is granted (see MBNA Am. Bank, N.A. v Anastasio, 35 AD3d 474 [2006]).

Upon renewal, since the petition otherwise made out a prima facie case for confirmation, and since said petition was unopposed, the petition to confirm the
arbitration award is granted, and the matter is remanded to the court below for entry of a judgment thereon.