Macri v. St. Agnes Cemetery, Inc.

• Decision Date: 06 January 1965
• Citation: 44 Misc.2d 702,255 N.Y.S.2d 278
• Court: New York Supreme Court
• Parties: Rose MACRI and James Ferro, Plaintiffs, v. ST. AGNES CEMETERY, INC., Anna Keeher and John Keeher, first name being fictitious, Defendants.

Page 278

255 N.Y.S.2d 278

44 Misc.2d 702

Rose MACRI and James Ferro, Plaintiffs, v. ST. AGNES CEMETERY, INC., Anna Keeher and John Keeher, first name being fictitious, Defendants.

Supreme Court, Special Term, Albany County.

Jan. 6, 1965.

Iannuzzi & Iannuzzi, New York City, for plaintiffs.

Dugan, Casey, Burke & Lyons, Albany, for defendant St. Agnes Cemetery, Inc.; John J. Yanas, Albany, of counsel.

Halter, Sullivan & Rehfuss, Albany, for defendants.

JOHN H. PENNOCK Justice.

There are two basic questions to be determined on the present motion to preclude. The defendant avers that the bills of particulars are defective as to verification and not responsive. The plaintiffs urge that they are responsive and that the originals were properly verified. The plaintiffs served a supplemental bill of particulars with their answering affidavit on the motion, to which the defendant, by reply affidavit, raised the issue of the defective verification. The record indicates that some delay is involved in the pleadings and the instant motion, however, under the circumstances the court is of the opinion that the motions shall be entertained to prevent further delay. In any event the service of the supplemental bill of particulars cures any tardiness on the part of the defendant to bring this motion.

The plaintiffs served copies of the bills of particulars both of which failed to include the affiant's name, either subscribed or conformed. There is some confusion as to whether the plaintiffs were proceeding under Rule 3044 or Rule 2106 (C.P.L.R.) or perhaps a combination of both.

If the intent was to comply with C.P.L.R., Rule 3044 the verification is defective. The affidavit failed to contain the affiant's and Notary Public's names. Rule 3044 was added to the new C.P.L.R. from R.C.P. 117 without change in substance. Under the new rule the verification on a copy must be conformed to the original verification in the same manner as required by R.C.P. 117.

The answering affidavit of the plaintiffs' attorney avers that he verified the bill of particulars served. This does not cure the defect. The customary practice under R.C.P. 117 (now Rule 3044 C.P.L.R.) still prevails, otherwise there would be no uniformity with the pleadings.

If the intent was to comply with C.P.L.R., Rule 2106, then the affirmation is also defective. The plaintiffs' attorney added to the substance of the customary form of verification a perjury clause. It was not subscribed to by the attorney as required by the C.P.L.R., Rule 2106, which reads as follows 'Affirmation of truth of statement by attorney.

'The statement of an attorney admitted to practice in the courts of the state and appearing in an action as attorney of record or as of counsel with the attorney of record, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with same force and effect as an affidavit.' (Rule 2106, C.P.L.R.)

This is a new rule and has no counterpart in the old Civil Practice Act or Rules of Civil Practice and its purpose is best explained by its proponents.

'The purpose of the subdivision is to save an attorney appearing in a civil action the trouble of taking an oath where he must presently make an affidavit or verification of a paper to be served or filed in the action. An oath requires an appearance before someone authorized to administer it. The appearance takes some time and if there is no one in the attorney's office to administer the oath at the time he is executing a paper, what is otherwise an annoyance can become a substantial nuisance. The matter is particularly burdensome to the attorney practicing in a small law office.' (See Sixth Report, Senate Finance Committee, page 206.)

The Penal Law was amended by the Legislature to include false affirmation by an attorney under this rule within the definition of perjury. (Laws of 1964, Chapter 645,...