Tamily v. General Contracting Corp.

Peters, J.

Appeal from a judgment of the Supreme Court (Keniry, J.), entered June 3, 1998 in Saratoga County, upon a decision of the court in favor of defendant RSJ Construction Corporation.

This action and a second action having the same title were tried together in August 1997 before Supreme Court without a jury. In the two actions, plaintiff sought to foreclose different mortgages which encumbered the same property and defendant RSJ Construction Corporation (hereinafter defendant) asserted a counterclaim in the second action. By decision dated March 31, 1998, the court found the mortgage that is the subject of this action viable and concluded that plaintiff was entitled to a judgment of foreclosure. In the second action, the court found that the mortgage therein was void and unenforceable and that defendant was entitled to judgment against plaintiff on the counterclaim. Plaintiff was directed to submit a proposed judgment of foreclosure and sale in this action and defendant was directed to prepare a proposed judgment in the second action dismissing the complaint and granting judgment in its favor on the counterclaim. The proposed judgment prepared and entered by defendant correctly reflects the court’s decision in the second action, but it has the index number for this action.

Contending only that the judgment prepared by defendant was entered in the wrong action and must be vacated, plaintiff appeals from the judgment. The incorrect index number on the judgment is the type of mistake or defect that does not affect a substantial right of a party and, therefore, assuming that plaintiff has not waived the defect (see, CPLR 2101 [f|), it can be cured by Supreme Court or this Court pursuant to CPLR 5019 (a). Defendant has submitted a copy of a recent decision and order of Supreme Court which, inter alia, cures the defect nunc pro tunc. This appeal, therefore, is moot.

Mikoll, J. P., Mercure, Carpinello and Graffeo, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.