Several mistakes in a complaint -- including typographical errors, the failure to state damages and the misspellings of both defendants' names -- are insufficient causes to dismiss the action, a Queens, N.Y., judge has ruled.
"There is no merit to defendants' assertion that the complaint should have been dismissed due to errors in the spelling of defendants' names," Supreme Court Justice Charles J. Markey ruled in Khiyayev v. Mikesaid Enterprises,, 9721/08. "Defendants have not demonstrated any prejudice from the insignificant errors."
Plaintiff Yury Khiyayev alleged that he hired contractor Mishael Sadykov, and Sadykov's company, MikeSad Enterprises, to demolish an existing home in Utopia, Queens, and construct a new one, for a total price of $485,000.
However, as described in Khiyayev's complaint, "The construction was not done in a workmanship manner. It was negligently and improperly done all to plaintiff's damages in the sum of $."
A blank space followed the dollar symbol, apparently unintentionally left unfilled. Khiyayev also misspelled both of the proposed defendants' names, calling Mishael Sadykov "Michael" and MikeSad Enterprises "Mikesaid."
The defendants moved to dismiss, citing the misspellings among other grounds.
"With all due respect to counsel," attorney Edward C. Donnelly wrote in an affirmation in support of a motion to dismiss, "your Affiant in my almost 25 years of practice, has rarely seen a pleading so devoid of content and specifications."
He argued the misspelled names prevented "due and proper notice and process."
"[C]learly the complaint and the sole cause of action therein are completely facially and substantively deficient and as indicated, there is no statement of damages whatsoever!" Donnelly added.
In response, Khiyayev noted that he wrote checks to both "Michael Sadykov" and "Mikesaid" (as well as "Mikesad").
"As to the defendant's name," he added, "he was called both MISHAEL and MICHAEL."
Markey found the mistakes non-prejudicial, and therefore insufficient cause for dismissing the action, though he did dismiss the complaint with respect to Sadykov on other grounds.
"The signature line of the contract designated for the contractor is in the name of MikeSad Enterprises, Inc. Defendant Sadykov's name does not appear anywhere in the written agreement," Markey wrote. "Thus, the documentary evidence establishes that the contract was entered into between plaintiff and the corporation and that defendant Sadykov was not a party to the contract."
Queens solo practitioner Stephen David Fink represented Khiyayev.
"What's interesting especially in this city, where there are so many foreign-sounding names, is that we go through all kinds of problems like this," Fink said. "I'm happy that [the court] corrected it. I didn't think it was a big deal. I was surprised that it was raised as an issue."
Sadykov was represented by Donnelly and Nathan Pinkhasov, both of the Law Offices of Nathan Pinkhasov in Queens.
"I figured it was worth advancing and attacking," Donnelly said of his objection to the misspellings, "although my main focus was dismissing the individual defendant."