Live by the Technicality. . .

Gaffey v Shah,

___ AD3d ___, ___ NYS3d ___ 2015 NY Slip Op 06779 [2d Dept., 2015]

Ah, live by the technicality, die by the technicality.

Plaintiff here received an answer from the defendant, but relied on a defect in the verification to reject the answer and treat it as a nullity. Plaintiff then moved for a default judgment based upon the defendant’s purported failure to answer. The motion was properly denied, based upon a technical defect in the letter rejecting the answer.

The answer here was verified by defendant’s counsel, upon the statement that the defendant resided in a county other than where the attorney has his office. Plaintiff’s counsel rejected the answer, stating only that the answer lacked a proper verification, without specifying the defect. Plaintiff then moved for a default judgment, now specifying that the defendant’s residence and his attorney’s office were in fact in the same county. Plaintiff claimed to have satisfied the diligence requirement, entitling him to treat the answer as a nullity. Supreme Court denied the motion, and the Second Department affirmed.

A party rejecting a pleading based on a defective verification must give notice of the rejection “with due diligence.” (CPLR 3022) The statute specifies neither the content nor the timing of the rejection, but the Court of Appeals has read it to include a requirement that the nature of the defect must be specified (Miller v Bd. of Assessors, 91 N.Y.2d 82, 86 [1997]; Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). The rejection letter here, therefore, was “ineffective” for failure to specify the nature of the defect in the verification. Also, even if the verification were improper, there was no prejudice to the plaintiff and the defect should have been ignored (see, CPLR 2001).

Not relevant here, but noteworthy nonetheless, are cases holding that “due diligence” in this context also means that the rejection must be made somewhere between “immediately” to within 24 hours of receiving the defective pleading (O’Neil v Kasler, 53 AD2d 310, 385 NYS2d 684 [4th Dept, 1976]; Ladore v. Mayor and Bd. of Trustees of Village of Port Chester, 70 A.D.2d 603, 416 N.Y.S.2d 280 [2d Dept., 1979]; Ames Dept. Stores v. Assessor, 102 A.D.2d 9, 476 N.Y.S.2d 222 [4th Dept., 1984]; Lentlie v. Egan, 94 A.D.2d 839, 463 N.Y.S.2d 542 [3rd Dept., 1983, aff’d  61 N.Y.2d 874, 474 N.Y.S.2d 467 [1984]; Air New York, Inc. v Alphonse Hotel Corp., 86 AD2d 932 [3rd Dept., 1982]). The continued validity of these cases is doubtful, however, in view of Miller v Bd. of Assessors, 91 N.Y.2d 82, at n. 3, [1997] where the Court of Appeals noted that it has never imposed a rigid time period for “due diligence,” and that lower court cases doing so are outdated.

The history of the strict ruling received an extensive and critical analysis by Justice Charles Wood, of the Supreme Court, Westchester County, in Rodriguez v Westchester Cty. Bd. of Elections, 47 Misc.3d 956 [Sup. Ct., Westchester Cty, 2015], where he found that tracing the various statements of the rule to their source reveals that they stem from dictum in a 1948 decision, Westchester Life, Inc. v. Westchester Mag. Co., 85 N.Y.S.2d 34 [Sup. Ct., N.Y. Cty., 1948]. Over the decades, this hardened into a rule.

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