Collins v. AA Trucking Renting Corp.

Decision Date29 November 1994
Citation209 A.D.2d 363,618 N.Y.S.2d 801
PartiesHenry COLLINS, et al., Plaintiffs-Appellants, v. AA TRUCKING RENTING CORP., Defendant, and Jorge Rivera, Defendant-Respondent.
CourtNew York Supreme Court — Appellate Division

Before SULLIVAN, J.P., and ELLERIN, KUPFERMAN and ASCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about April 5, 1993, which granted defendant-respondent's motion to vacate his default in appearing, unanimously affirmed, without costs.

We reject plaintiffs' contention that the two written statements defendant-respondent submitted to show a reasonable excuse for his default and a meritorious defense do not qualify as oaths and therefore should not have been considered. There is no specific form of oath required in this State (see, General Construction Law § 36), other than that it be "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his [sic] religious or ethical beliefs" (CPLR 2309[b]. While defendant does not say in either statement that he had been sworn, he does say that he has read the statements, and they are "true, factual and voluntarily given". In addition, both statements contain the jurat and stamp of a notary public, who, in the absence of a showing to the contrary, is presumed to have acted within his or her jurisdiction and carried out his or her duties as required by law (Matter of Cubisino v. Cohen, 47 N.Y.S.2d 952, 954, affd. 267 App.Div. 891, 48 N.Y.S.2d 798; see also, Matter of Weinbaum, 43 Misc.2d 991, 995, 252 N.Y.S.2d 690, app. dismissed 24 A.D.2d 632, 262 N.Y.S.2d 440, lv. dismissed 16 N.Y.2d 1078, 266 N.Y.S.2d 399, 213 N.E.2d 692).

We have considered plaintiff's other arguments and find them to be without merit.

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24 cases
  • Citibank v. Abrams
    • United States
    • New York Supreme Court — Appellate Division
    • November 3, 2016
    ...and the affidavit was notarized. As such, defendants' argument is without merit (see CPLR 2309[b] ; Collins v. AA Truck Renting Corp., 209 A.D.2d 363, 363, 618 N.Y.S.2d 801 [1994] ). We have examined defendants' remaining arguments in opposition to plaintiff's motion for summary judgment an......
  • Lillo-Arouca v. Masoud
    • United States
    • New York Supreme Court — Appellate Division
    • July 11, 2018
    ...were not in admissible form (cf. Furtow v. Jenstro Enters., Inc., 75 A.D.3d 494, 495, 903 N.Y.S.2d 754 ; Collins v. AA Trucking Renting Corp., 209 A.D.2d 363, 618 N.Y.S.2d 801).Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment ......
  • Kristiansen v. Danish Athletic Props.
    • United States
    • New York Supreme Court
    • May 18, 2023
    ... ... complaint as of right " ( Poly Mfg. Corp. v ... Dragonides , 109 A.D.3d 532, 534-535 [2013] [citing CPLR ... 3025 ... A.D.3d 646 [2018]; cf Collins ... A.D.3d 646 [2018]; cf Collins v AA Truck Renting ... ...
  • Kristiansen v. Danish Athletic Props.
    • United States
    • New York Supreme Court
    • May 18, 2023
    ... ... complaint as of right" (Poly Mfg. Corp. v ... Dragonides, 109 A.D.3d 532, 534-535 [2013] [citing CPLR ... 3025 ... Masoud, 163 A.D.3d 646 [2018]; cf Collins ... Masoud, 163 A.D.3d 646 [2018]; cf Collins v ... A A Truck Renting ... ...
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