- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Hodges v. 37-11 30th Street, LLC
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03429
Background
Plaintiff Pierre Hodges commenced this action to recover damages for personal injuries allegedly sustained at a construction site owned by 37-11 30th Street, LLC, 37-11 30th Street Holdings, LLC, and Slate Property Group, LLC, where SD Builders and Construction, LLC served as general contractor (collectively the appellants). The appellants commenced a third-party action against PPEE Construction, Inc. (PPEE), plaintiff’s employer, asserting claims for contractual defense and indemnification, breach of contract, and failure to procure insurance.
The appellants moved for summary judgment dismissing the amended complaint and on their third-party causes of action. Both the plaintiff and PPEE opposed the motion. Supreme Court, Kings County (Joy F. Campanelli, J.), denied the motion solely on the procedural ground that the appellants failed to include a word count certification with their motion papers, without reaching the merits. The appellants appealed.
Holding
The Appellate Division, Second Department, reversed the order, on the law and in the exercise of discretion, with one bill of costs, and remitted the matter to Supreme Court for a new determination on the merits. The Court held that Supreme Court should have overlooked the appellants’ failure to submit a word count certification, as no substantial right of any party was prejudiced, citing Bonas v. RRR & N Corp., 240 AD3d 851, 852; Taveras v. Incorporated Village of Freeport, 225 AD3d 822, 823; and Anuchina v. Marine Transport Logistics, Inc., 216 AD3d 1126, 1127.
Because the Supreme Court did not consider the merits of the motion, the Appellate Division did not address the substantive arguments and took no position on the ultimate disposition of the summary judgment motion, instead remitting for a full determination on the merits.
Takeaways
This decision establishes that the failure to include a word count certification with summary judgment motion papers is a technical deficiency that should be overlooked where no substantial right of any party is prejudiced. Courts should not deny otherwise meritorious motions on purely procedural grounds when the deficiency is harmless. The ruling aligns with the broader principle that procedural requirements should serve justice rather than create traps for the unwary, particularly where the opposing party suffered no prejudice from the omission.
Why It Matters
Litigators should take note of this decision’s pragmatic approach to procedural compliance. While word count certifications are required under court rules, their absence alone should not be dispositive when the papers are otherwise properly submitted and the opposing party is not prejudiced. That said, practitioners should include all required certifications to avoid the delay and expense of an appellate reversal. This case also illustrates the Appellate Division’s willingness to correct overly rigid applications of procedural rules that frustrate the resolution of cases on their merits.