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Tag Archives: Pleadings

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).

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Matter of Kickertz v New York Univ.,

___ NY3d ___, 2015 NY Slip Op 02800

In an Article 78 proceeding, if the respondent raises objections in point of law by pre-answer motion, and the motion is denied, “the court shall permit the respondent to answer”. (CPLR 7804 [f]) Despite the mandatory language there is an exception, recognized in Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100 [1984], which allows the answer to be bypassed where the facts are so fully developed in the parties’ presentations as to be undisputed, and where there will be no prejudice from taking the shortcut. In BOCES, for example, the objection in point of law had been to standing, and while the papers developed the facts they did not clearly rule out triable issues. An answer was therefore required before the merits could be ruled on.

Here, both Supreme Court and the Appellate Division majority found the facts sufficiently developed to allow decisions on the merits without an answer. They then reached opposite conclusions on those merits. The Court of Appeals, however, found the facts sufficiently in doubt as to disallow the procedural shortcut, vacated the judgment and directed the service of an answer by the respondent. Read More