Rosenblum v. 170 West Village Associates

Ellerin and Kupferman, JJ.,

dissent in a memorandum by Ellerin, J., as follows: We agree with the trial court that to accept appellant Onasor’s contention that jurisdiction was not obtained over it because of the third-party plaintiff’s failure to formally serve it with a summons, rather than just a third-party complaint, is to' exalt form over substance. The failure to include a summons here along with the third-party complaint was not a jurisdictional defect, but rather a curable irregularity (see, Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599). Further, Onasor, which is a named party defendant in a consolidated action brought by the underlying plaintiffs, had adequate notice of the claims now raised against it.