Opinion
05-10-2024
In the Matter of Londel DAVIS, Jr., et al., Petitioners–Respondents, v. Craig SCHLEY, Respondent–Appellant, The Board of Elections in the City of New York, Respondent.
Abrams Fensterman, LLP, White Plains (Lisa C. Florio of counsel), for appellant. Paul D. Newell, New York, for respondents.
Abrams Fensterman, LLP, White Plains (Lisa C. Florio of counsel), for appellant.
Paul D. Newell, New York, for respondents.
Moulton, J.P., Scarpulla, Shulman, Higgitt, O’Neill–Levy, JJ.
Order and judgment (one paper), Supreme Court, New York County (Richard G. Latin, J.), entered April 29, 2024, which struck the unverified answer of appellant Craig Schley and granted the petition to invalidate his designating petition, unanimously reversed, on the law and the facts, without costs, and the matter remanded for further proceedings consistent with this opinion.
As a preliminary matter, we reach the merits of the issues despite the petition being granted upon respondent’s "default." The issue raised on appeal is whether Supreme Court properly struck respondent’s unverified answer (see Matter of Atwood v. Pridgen, 142 A.D.3d 1278, 1279, 37 N.Y.S.3d 164 [4th Dept. 2016], lv denied 28 N.Y.3d 945, 38 N.Y.S.3d 513, 60 N.E.3d 408 [2016]).
Petitioners failed to reject respondent’s answer and deem it a nullity based upon the lack of a verification (see CPLR 3022). As a result, Supreme Court abused its discretion in sua sponte striking respondent’s answer and granting the petition on default on this basis. Under CPLR 3026, "[p]leadings shall be liberally construed" and "[d]efects shall be ignored if a substantial right of a party is not prejudiced" (Matter of Augostini v. Bernstein, 172 A.D.3d 1946, 1947, 101 N.Y.S.3d 780 [4th Dept. 2019]).
Accordingly, the matter is remanded for further proceedings, including a determination of whether respondent’s answer was properly served.