___ 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 ; Lepkowski v State of New York, 1 NY3d 201, 210 ). 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).