Ft. Holding Corp. v. Otero

Decision Date22 November 1993
Citation598 N.Y.S.2d 908,157 Misc.2d 834
PartiesFT. HOLDING CORP., Petitioner-Licensor, v. Greida OTERO, Respondent-Licensee, "John Doe" and/or "Jane Doe", Respondents-Occupants.
CourtNew York City Court

Mitrani & Axelrod, New York City, for petitioner.

Francis Clark and Morton B. Cohen, of counsel, Harlem Legal Services, Inc., New York City, for respondent Greida Otero.

RICHARD F. BRAUN, Judge.

Respondent GREIDA OTERO ("Respondent") moves to dismiss the Petition in this summary holdover proceeding. One ground for dismissal is that the Verification of the Petition is defective.

The Petition is verified by Petitioner's attorney. The Verification is stated to be made pursuant to RPAPL section 741, and states that the allegations of the Petition are "true as to [the attorney's] knowledge except as to matters stated to be upon information and belief...." No allegations of the Petition are made upon information and belief.

Respondent contends that Petitioner's attorney does not really have personal knowledge. Whether Petitioner's attorney actually has personal knowledge of all of the allegations of the Petition cannot be determined by this Court on the motion papers but rather the assertion must be taken as true in determining this motion. (Cf., Anguita v. Koch, 179 A.D.2d 454, 457, 579 N.Y.S.2d 335, 338 [1st Dept.1992] (same as to the factual averments of a complaint on a motion to dismiss made pursuant to CPLR 3211[a][2].

Petitioner argues that Respondent did not raise her objection to the propriety of the Verification in a timely fashion, in violation of CPLR 3022, which requires that due diligent notice be given to the attorney for the adverse party of an objection to a purportedly defective verification. If notice is not given with due diligence, any objection to the verification is deemed waived. (See, Rosenshein v. Ernstoff, 176 A.D.2d 686, 576 N.Y.S.2d 2 [1st Dept.1991]. * Some courts have set forth specific time limits for raising an objection with due diligence. (See, Lentlie v. Egan, 94 A.D.2d 839, 840, 463 N.Y.S.2d 542, 543 [3rd Dept.1983], affd, 61 N.Y.2d 874, 474 N.Y.S.2d 467, 462 N.E.2d 1185 [1984]; O'Neil v. Kasler, 53 A.D.2d 310, 315, 385 N.Y.S.2d 684, 687 [4th Dept.1976]; State of New York v. McMahon, 78 Misc.2d 388, 389, 356 N.Y.S.2d 933, 936 [Sup.Ct., Albany County, 1974]; KFJ Realty Co. v. Second Ave. Boutique, NYLJ, June 5, 1991, at 23, col. 4 [Civ.Ct., N.Y. County, Collazo, J.]; Westchester Life, Inc. v. Westchester Magazine Co., 85 N.Y.S.2d 34 [Sup.Ct., N.Y. County 1948]; see also, Able Breaking Corp. v. Consol. Edison Co. of New York, Inc., 88 A.D.2d 649, 450 N.Y.S.2d 511 [2nd Dept.1982]).

Respondent attacks the verification as violative of CPLR 3021, which is entitled: "Form of affidavit of verification." CPLR 2101(f) provides that a defect in the form of a paper is waived unless an objection to it is made within two days after receipt of the paper. However, CPLR 2004 permits a court to extend this time limit whether the request to extend is made before or after the expiration of the two day period. Thus, a rejection of a verification made after two days can, under the appropriate circumstances, be deemed made with due diligence nunc pro tunc.

As alluded to by this Court in dictum in Kann v. Kann, NYLJ, Feb. 4, 1991 at 28, col. 1 (Civ.Ct., N.Y. County), the interpretation of the term "due diligence" under CPLR 3022 must turn on the particular circumstances. While due diligence could be within two days of a party's receiving a verification in a particular instance, it may not be in another. In a summary proceeding, the purpose of RPAPL section 741's requiring a petition to be verified is to attempt to insure that the petition in an eviction proceeding is truthful by making the verifier stand behind the pleading under oath. As it is a summary proceeding, the petitioner is entitled to a reasonably swift rejection of a defective verification. However, a generally prescribed short time limit for due diligent notification of the rejection of a verification should not be inflexibly applied as the standard in all proceedings and actions.

Here, Respondent asserts that she received the Petition on January 13, 1993. Both Respondent and her attorney state that, on January 19, 1993, she went to the latter's office to seek representation. On January 21, 1993, Respondent's attorney decided to represent her, but the retainer agreement between them was not signed until January 26, 1993. The notice rejecting the Verification was sent by Respondent's attorney to Petitioner's attorneys on January 22, 1993. Respondent's motion papers show that an interpreter employed by Respondent's attorney translated for Respondent from English into Spanish the Affidavit in support of her motion. Therefore, under these circumstances of the attorney for Respondent rejecting the Verification within twenty-four hours of the date that he determined to represent this non-English-speaking Respondent, the due diligence standard was met. (Cf., Fazal Realty Corp. v. Paz, 151 Misc.2d 396, 398, 573 N.Y.S.2d 399, 401 [Civ.Ct., N.Y. County 1991] (the inability of a non-English-reading tenant to be able to understand the notice of petition and petition constituted a sufficient excuse to vacate her default).

In attacking the validity of the Verification, Respondent tries to draw a distinction under CPLR 3020(d)(1) and (3) between a verification made by an attorney pursuant to RPAPL section 741 where the party is a domestic corporation, versus where it is a foreign corporation. The only assertion that Petitioner is a domestic corporation is made by Respondent's counsel upon information and belief. No documentation in support of that belief is submitted. Neither the Petition nor Petitioner's opposition papers to the motion speak to whether Petitioner is a domestic or foreign corporation. However, if Petitioner is a foreign corporation, then clearly its attorney can verify the Petition under appropriate circumstances, pursuant to RPAPL section 741 and CPLR 3020(d)(3). If it is a domestic corporation, the same provisions permit it to have its attorney verify the Petition. (Teachers Coll. v. Wolterding, 75 Misc.2d 465, 348 N.Y.S.2d 286 [Civ.Ct., N.Y. County 1973], revd. on other grounds, 77 Misc.2d 81, 351 N.Y.S.2d 587 [App. Term, 1st Dept.1974]. Although CPLR 3020(d)(1)'s use of the word "shall" would appear to mandate that a domestic corporation's verification be made by an officer thereof, the same seemingly mandatory term is used in CPLR 3020(d) which states: "The verification of a pleading shall be made by the affidavit of the party...." If it were the rule that only a party could verify a pleading, then CPLR 3020(d)(3)'s permitting an attorney or agent to verify under certain circumstances would be rendered meaningless, which is of course an improper statutory construction. (See, McKinney's Statutes section 144; Palmer v. Van Santvoord, 153 N.Y. 612, 616, 47 N.E. 915 [1897].

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    ...circumstances of the case (see, e.g., Theodoridis v. American Tr. Ins. Co., 210 A.D.2d 397, 620 N.Y.S.2d 984; Ft. Holding Corp. v. Otero, 157 Misc.2d 834, 835-836, 598 N.Y.S.2d 908; cf., CPLR 2101[f] [objection to a defect in the form of a paper, if a substantial right of a party is not pre......
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    ...Corporation, supra;SLG Graybar, L.L.C. v. John Hannaway Law Offices, 182 Misc.2d 217 [Civ. Ct. N.Y. Co. 1999];Ft. Holding Corp. v. Otero, 157 Misc.2d 834 [Civ. Ct. N.Y. Co. 1993]). "Due diligence" has been interpreted to mean notice given immediately or within twenty-four hours of the recei......
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    ...of an objection to the propriety of a verification "must turn on the particular circumstances." Fort Holding Corp. v. Otero (157 Misc.2d 834, 836, 598 N.Y.S.2d 908, 910 [Civ Ct N.Y. Co 1993] ). See, e.g., Oceana Apartments v. Spielman (164 Misc.2d 98, 623 N.Y.S.2d 724 [Civ Ct Kings Co 1995]......
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3 books & journal articles
  • Pleadings
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 1 - 2014 Contents
    • 18 August 2014
    ...to properly verify a complaint when required, the complaint may be dismissed without prejudice. [See, e.g., Ft. Holding Corp. v. Otero , 157 Misc2d 834, 837-38, 598 NYS2d 908, 910-11 (Civ Ct 1993) (petition dismissed because counsel’s verification failed to state why party had not verified)......
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    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 1 - 2016 Contents
    • 18 August 2016
    ...to properly verify a complaint when required, the complaint may be dismissed without prejudice. [See, e.g., Ft. Holding Corp. v. Otero , 157 Misc2d 834, 837-38, 598 NYS2d 908, 910-11 (Civ Ct 1993) (petition dismissed because counsel’s verification failed to state why party had not verified)......
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    • United States
    • James Publishing Practical Law Books New York Civil Practice Before Trial
    • 2 May 2018
    ...to properly verify a complaint when required, the complaint may be dismissed without prejudice. [See, e.g., Ft. Holding Corp. v. Otero , 157 Misc2d 834, 837-38, 598 NYS2d 908, 910-11 (Civ Ct 1993) 15-25 Pleadings §15:112 (petition dismissed because counsel’s verification failed to state why......

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