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FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Aarons, determined, because of a change in the Civil Procedure Law and Rules (CPLR), the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be corrected if there is no prejudice:

CPLR 2001 was amended in 2007 to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition… . Indeed, the purpose behind amending CPLR 2001 was “to allow courts to correct or disregard technical defects, occurring at the commencement of an action [or proceeding], that do not prejudice the opposing party” and “to fully foreclose dismissal of actions for technical, non-prejudicial defects”… . In view of the amendment of CPLR 2001, the rule articulated in our prior decisions — a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001 — is no longer tenable.

… [A] court may allow a petitioner to correct any mistake, omission, defect or irregularity in the filing process upon such terms as may be just … . CPLR 2001 also states that the court shall disregard any such mistake, omission, defect or irregularity if the right of a party is not substantially prejudiced. “[T]he primary purpose of a petition is to give notice to the respondent that the petitioner seeks a judgment against [a] respondent so that it may take such steps as may be advisable to defend the claim” … . A return date accomplishes this purpose by notifying the responding party when responsive papers must be served and when the petition will be heard … .

Here, the record reflects that respondents had sufficient notice of the petition. Indeed, respondents’ counsel conceded at oral argument before Supreme Court that they had “plenty of time to respond” and, on appeal, they do not contend that they suffered any prejudice. As such, the omission of a return date should have been disregarded as a mere technical infirmity … . Matter of Oneida Pub. Lib. Dist. v Town Bd. of The Town of Verona, 2017 NY Slip Op 05659, 3rd Dept 7-13-17

CIVIL PROCEDURE (FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/NOTICE OF PETITION (RETURN DATE, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT

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