Opinion
7240/07.
Decided on February 21, 2008.
Plaintiffs move seeking an order granting them a default judgment over defendants TOUBA HAROU CAYOR TRANSPORTATION, INC. (Touba), and NDONGO DIOUF (Diouf). Plaintiff asserts that despite serving the summons and complaint upon the Touba and Diouf they have failed to interpose a timely and properly verified answer. Accordingly, to the extent that an answer served by Touba and Diouf, was rejected as improperly verified, plaintiffs aver that Touba and Diouf have not answered and have thus defaulted. Touba and Diouf oppose the instant motion for several reasons, including that they had no obligation to verify their answer, since plaintiffs' answer was improperly verified.
For the reasons that follow hereinafter, plaintiffs' motion is hereby denied.
The instant action is for alleged personal injuries. The complaint alleges that on December 22, 2005, plaintiffs were involved in a motor vehicle accident with vehicles owned and operated by the defendants. It is alleged that plaintiffs were injured a result of the accident herein.
In support of the instant motion, plaintiffs submit a copy of the summons and verified complaint. Said complaint is verified by plaintiffs' counsel who within his verification avers that he is verifying the complaint insofar as "plaintiffs do not reside in the county in which your affirming maintains an office." Plaintiffs also submit an affidavit from plaintiff TRACIE L.
DRAKE (Drake), wherein she details the particulars of her accident. Plaintiffs submit two affidavits of service evincing that Touba was served with a copy of the summons and complaint on February 12, 2007 and Diouf was served with the same on February 13, 2007. Plaintiffs submit a copy of the police accident report for the accident herein, evincing that Touba and Diouf list an address in New York County. Plaintiffs submit a copy of Touba and Diouf's answer dated May 4, 2007. The same is verified by counsel for Touba and Diouf who avers that the same is verified by counsel insofar as Toouba and Diouf "do not reside within the County in which the firm of BAKER, MCEVOY, MORRISSEY MOSKOVITS, P.C. maintain their offices for the practice of law." Plaintiffs submit a letter dated May 11, 2007, sent to Touba and Diouf's counsel, wherein they aver that they are rejecting Touba and Diouf's answer, received May 10, 2007, insofar as the same is improperly verified. Plaintiffs aver that the verification is improper insofar as Touba and Diouf reside in the same county as their counsel's law firm. Plaintiffs submit a copy of the envelope wherein the opposition to the current motion was mailed to them. The postage stamp on said envelope evinces that the same was mailed on September 24, 2007.
In opposition to the instant motion, Touba and Diouf submit a host of documents, which for the reasons discussed below, cannot be considered by this Court.
Default Judgment
According to CPLR § 3215 a motion for default judgment can be made once a defendant has failed to appear. According to CPLR § 3215(f)
On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316, and proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Where a verified complaint has been served it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or his attorney.
Once plaintiff submits proof of service and an affidavit constituting the merits of his claim, the application for a default judgment must be granted. Pampalone v. Giant Building Maintenance, Inc. , 17 AD3d 556 (2nd Dept. 2005); Andrade v. Ranginwala, 297 AD2d 691 (2nd Dept. 2002). Moreover, once the requisite showing has been made and the requisite proof proffered, said motion shall be granted unless the defendant can establish that it has a meritorious defense to the claims made, a reasonable excuse for the delay in interposing its answer, and that the delay in interposing an answer has in no way prejudiced the plaintiffs in the prosecution of their case. George Higgins v. Bellet Construction Co., Inc., 287 AD2d 377 (1st Dept. 2001); Buywise Holding, LLC v. Harris, 31 AD3d 681 (2nd Dept. 2006); Giovanelli v. Rivera , 23 AD3d 616 (2nd Dept. 2005); Mjahdi v. Maguire , 21 AD3d 1067 (2nd Dept. 2005); Thompson v. Steuben Realty Corp. , 18 AD3d 864 (2nd Dept. 2005).
With regard to the merits of the claim, upon an application for a default judgment, it is incumbent upon the plaintiff to submit facts, either by complaint or affidavit, establishing the claims alleged. Dyno v. Rose, 260 AD2d 694 (3rd Dept. 1999). The court must then exercise its discretion and draw legal conclusions from the facts proffered in an effort to determine whether the plaintiff has established a prima facie case. Id. If upon review of the facts proffered to establish the merits of a claim the court concludes that plaintiff has failed to establish a prima facie case, plaintiff is not entitled to a default judgment. Id.; Green v. Dolphy Construction Co., Inc., 187 AD2d 635 (2nd Dept. 1992);. Accordingly, when the facts submitted in support of the merits of an action are solely upon information and belief, a motion for default judgment shall be denied. Zelnik v. Bidermann Industries U.S.A., Inc., 242 AD2d 227 (1st Dept. 1997). Where no valid cause of action is stated, a motion for default judgment shall be denied. Cree v. Cree, 124 AD2d 538 (2nd Dept. 1986). Where the verified complaint is conclusory and devoid of factual allegations constituting the claim alleged, a motion for default judgment shall be denied. Celnick v. Freitag, 242 AD2d 436 (1st Dept. 1997); Luna v. Luna, 263 AD2d 470 (2nd Dept. 1999).
It is well settled, that deposition testimony can be utilized to establish the merits of an action. Empire Chevrolet Sales Corporation v. Spallone, 304 AD2d 708 (1st Dept. 2003); Ramputi v. Timko Contracting Corp., 262 AD2d 26 (1st Dept. 1999). A complaint, verified by an attorney, rather than plaintiffs themselves, is insufficient to prove the merits of a case. Deleon v. Sonin Genis, 303 AD2d 291 (1st Dept. 2003); Juseinoski v. Board of Education of the City of New York, 2004 WL 3171137 (2nd Dept. 2004); Tietz v. Blatt, 280 AD2d 469 (2nd Dept. 2001); Richards v. Lewis, 243 AD2d 615 (2nd Dept. 1997). This is because a complaint verified by an attorney "is pure hearsay utterly devoid of evidentiary value." Feffer v. Malpeso, 210 AD2d 60, 60 (2nd Dept. 1994), quoting, Joosten v. Gale, 129 AD2d 531, 535 (1st Dept. 1987). However, complaints verified by an attorney, where said attorney has personal knowledge of facts constituting the claim, are sufficient to establish the merits of a claim. State Farm Mutual Automobile Insurance Company v. Rodriguez, 12 AD3d 662 (2nd Dept. 2004); Martin v. Zangrillo, 186 AD2d 724 (2nd Dept. 1992). Similarly, bills of particulars are sufficient to establish the merits of a claim. Ramputi v. Timko Contracting Corp., 262 AD2d 26 (1st Dept. 1999).
Pursuant to CPLR § 3215(a) "[i]f the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default." Accordingly, if the damages sought are not for a sum certain or for an amount which can be made certain, a default judgment is only as to liability, where the defendant admits all traversable allegations in the complaint as to liability only. Rokina Optical Co., Inc., Camera King, Inc., 63 NY2d 728 (1984); Arent Fox Kinter Plotkin Kahn, PLLC v. Gmbh, 297 AD2d 590 (2nd Dept. 2002). A trial on inquest must be held wherein the defendant is afforded an opportunity present and try a case in mitigation of damages. Id. The term "sum certain" contemplates a situation where once liability has been established, "there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments." Reynolds Securities, Inc. v. Underwriters Bank and Trust Company, 44 NY2d 568, 572 (1978).
CPLR § 3215(c), and case law, mandate that a default judgment be taken within one year of defendant's failure to appear. Herzbrun v. Levine, 23 AD2d 744 (1st Dept. 1965); Opia v. Chukwu, 278 AD2d 394 (2nd Dept. 2000); Sanders v. Marino Falcone Brick Contracting, Inc., 133 AD2d 342 (2nd Dept. 1987). A failure to take a default within one year of defendant's failure to appear, generally requires dismissal of the complaint. Id. To avoid dismissal of the complaint for failure to timely move for a default, a plaintiff must demonstrate good cause for the delay in taking a default and the existence of a meritorious action. Id. Law office failure, while generally grounds excusing the failure to take a timely default, will not excuse a lengthy and unacceptable delay. Sanders v. Marino Falcone Brick Contracting, Inc., 133 AD2d 342 (2nd Dept. 1987); Opia v. Chukwu, 278 AD2d 394 (2nd Dept. 2000).
Verification of Pleadings and Rejection Failure of Same
CPLR § 3020 governs the verification of pleadings, when the same must be verified, and who must verify the same. CPLR § 3020(a) reads
Generally. A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes it to be true. Unless otherwise specified by law, where a pleading is verified, each subsequent pleading shall also be verified, except the answer of an infant and except as to matter in the pleading concerning which the party would be privileged from testifying as a witness. Where the complaint is not verified, a counterclaim, cross-claim or third-party claim in the answer may be separately verified in the same manner and with the same effect as if it were a separate pleading. (Emphasis added).
Thus, aside from other instances where a party must verify a pleading, as delineated by statute and case law, the foregoing section mandates that a party must verify his/her pleadings if the opposing party has verified his/her pleading. This means that if a plaintiff serves a verified complaint, defendant is required to serve a verified answer. Federal Schools, Inc. v. Saporano, 25 NYS2d 313 (Appellate Term, 1st Dept, 1941).
It is well settled that when a plaintiff's complaint is not properly verified, a defendant's answer need not be verified. Morris v. Fowler, 99 A.D. 245 (1st Dept. 1904); Moran v. Helf, 52 A.D. 481 (1st Dept. 1900); Bambergers Div. of R.H. Macy Co., Inc. v Smith, 91 Misc 2d 856 (County Court, Rockland County 1977); The Treen Motors Corporation, Inc. v. Pelt, 106 Misc. 357 (Supreme Court, Kings County 1919). In Moran, the court found that the verification by plaintiff's counsel served along with the complaint was defective. Moran v. Helf, 52 A.D. 481 (1st Dept. 1900). To the extent that the verification was not proper, it was tantamount to no verification at all and thus, the defendant had the right to serve an unverified answer and the plaintiff was compelled to accept it. Id.
Generally, the verification must be made by an affidavit from the party to the particular action. CPLR § 3030(d). However, under certain circumstances, an attorney may verify the pleading. CPLR § 3020(d)(3) states if the party is a foreign corporation, or is not in the county where the attorney has his office, or if there are two or more parties united in interest and pleading together and none of them acquainted with the facts is within that county, or if the action or defense is founded upon a written instrument for the payment of money only which is in the possession of an agent or the attorney, or if all the material allegations of the pleading are within the personal knowledge of an agent or the attorney, the verification may be made by such agent or attorney. (Emphasis added).
Thus, according to the statute, and some case law, an attorney may verify a pleading if the party to the action"is not in the county where the attorney has his office. Tenneriello v. Board of Elections of the City of New York, 63 NY2d 700 (1984) (In discussing statute, court states that an attorney is authorized to verify in lieu of client when client is not in county where attorney has his office.); Goldman v. City of New York, 287 AD2d 482 (2nd Dept. 482) (In discussing statute, court states that an attorney is authorized to verify in lieu of client when client is not in county where attorney has his office.). However, it has also been held that an attorney may verify his client's pleading upon assertion that his client "does not reside" in county where attorney has his office. Suto v. Folkes Heating, Cooling Burner, Service, Inc. , 15 AD3d 469 (2nd Dept. 2005); Page v. Ceresia, 265 AD2d 730 (3rd Dept. 1999); Berger v. Feinerman, 203 AD2d 407 (2nd Dept. 1994).
CPLR § 3022, states that a defective verification as tantamount to no verification at all and authorizes a party to reject a pleading which is unverified or verified in a defective manner. CPLR § 3022 states
A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.
Thus, when a pleading, in a case where verification is required, is served without proper verification, the same can be treated as a nullity, provided the party rejecting said pleading, gives his adversary immediate notice. Master v. Pohanka , 44 AD3d 1050 (2nd Dept. 2007); Air New York, Inc. v. Alphonse Hotyel Corp., 86 AD2d 932 (3rd Dept. 1982); Ladore v. Mayor and Board of trustees of the Village of Port Chester, 70 AD2d 603 (2nd Dept. 1979). Due diligence, as stated within the aforementioned statute, means within 24 hours. Id. The failure to promptly notify an adversary that a pleading is being rejected is a waiver of any defect in the same's verification. Clark v. State of New York, 302 AD2d 942 (4th Dept. 2003). CPLR § 2214
CPLR §§ 2214(b) and (c) read
(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits shall be served at least seven days before such time if a notice of motion served at least twelve days before such time so demands; whereupon any reply affidavits shall be served at least one day before such time. (c) Furnishing papers to the court. Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved. Where such papers are in the possession of an adverse party, they shall be produced by him at the hearing on notice served with the motion papers. Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.
The rules above, regarding the timely submission of papers, and the sanctions prescribed by the same should be strictly enforced by the court, "since indifference to these provisions results in unfairness to the movant and impairment of the administration of justice." Wallin v. Wallin, 34 AD2d 870, 871 (3rd Dept. 1970). Thus, where a party submits tardy papers in violation of CPLR § 2214, presents no excuse for the violation and such a delay results in prejudice, the court should exercise its discretion and reject said papers. Mosheyva v. Distefano, 288 AD2d 448 (2nd Dept. 2001); Bush v. Hayward, 156 AD2d 899 (3rd Dept. 1989). In fact it has been held that untimely papers should be rejected when no excuse for the delay is proffered, irrespective of whether the movant has been prejudiced by the delay. Risucci v. Zeal Management Corp., 258 AD2d 512 (2nd Dept. 1999). In fact, accepting late papers without an excuse for the delay has been held to be an abuse of the court's discretion. Romeo v. Ben-Soph Food Corporation, 146 AD2d 688 (2nd Dept. 1989). That an attorney was on vacation thereby preventing the timely submission of papers is not good cause for the delay under CPLR § 2214. Henderson v. Stillwell, 116 AD2d 861 (3rd Dept. 1986). A court has the discretion to consider late opposition papers, provided it affords movant time to submit reply papers. Kavakis v. Total care Systems, 209 AD2d 480 (2nd Dept. 1994). Discussion
Plaintiff's motion seeking a default judgment is hereby denied, insofar as based upon a review of plaintiffs' own submissions and the current controlling law, plaintiffs should have never rejected Touba and Diouf's answer and were in fact compelled to accept the same.
Preliminarily, this Court finds that insofar as Touba and Diouf served their opposition papers on the return date of the instant motion and have failed to articulate or aver why service was belated, the Court must reject their opposition papers and cannot consider the same. A review of the submission evinces that the instant motion was initially returnable on September 24, 2007. While Touba and Diuof's opposition is accompanied by an affirmation of service wherein it is sworn that the same was served upon plaintiffs on September 17, 2007, the date on the postage stamp on the envelope within which said motion was mailed evinces that it was not mailed until September 24, 2007, the return date of the instant motion. Where a party submits tardy papers in violation of CPLR § 2214, presents no excuse for the violation and such a delay results in prejudice, the court should exercise its discretion and reject said papers. It has been held that untimely papers should be rejected when no excuse for the delay is proffered, irrespective of whether the movant has been prejudiced by the delay. In this case, this Court finds that the date on the postage stamp controls and that as such, Touba and Diouf's opposition was served in violation of CPLR § 2214. To the extent that no excuse is proffered for the delay in serving said papers, the same must be rejected, despite the absence of prejudice, which to the extent that plaintiffs were given an opportunity to submit a reply, does not exist.
Notwithstanding the foregoing, this Court finds that based on plaintiffs' own submissions, the instant motion must be denied, insofar as this Court concludes that the verification submitted by Touba and Diouf was in all respects proper and as such, rather than reject said answer, plaintiffs were bound to accept the same. Preliminarily, the Court takes the opportunity to discuss the propriety of the verification utilized by the parties in the instant action and finds that the same constitutes a proper verification pursuant to CPLR § 3020(d)(3). Notwithstanding the language of the statute, which authorizes verification by an attorney when his clients are not present in the county where said attorney keeps a law office, it is well settled that an attorney may verify his client's pleading upon assertion that his client "does not reside" in county where attorney has his office. That verification is just as proper as one which is squarely compliant with the statute in that the verification avers that the client "is not in the" the county where the lawyer maintains an office. Accordingly, the language employed by both plaintiffs, Touba and Diouf, within their verifications, was in all respects proper.
To the extent that plaintiffs properly verified their complaint, Touba and Diouf were required to provide a verified answer, pursuant to CPLR § 3020(a) which requires that once a party verifies his/her pleadings all subsequent pleadings must be verified. Touba and Diouf did in fact verify their answer and rejection pursuant to CPLR § 3022 was only warranted if the answer was either not verified or verified improperly. In this case, plaintiffs rejected the answer herein asserting that the verification was improper insofar as Touba and Diouf resided in the same county as their attorney, namely New York County. In support of that contention plaintiffs submit a copy of the accident report for the instant accident wherein Touba and Diouf list an address within New York County.
In order to establish that the verification herein was improper, plaintiffs have to establish that at the time that the answer herein was verified Touba and Diouf did reside in New York County in contravention of what was as averred in the verification at issue. Alternatively, to the extent that the statute also authorizes an attorney to verify a pleading when the party is not in the county wherein the attorney maintains an office, Touba and Diouf can establish improper verification by establishing that at the time the answer was verified, Touba and Diouf were present in New York County. The evidence submitted in support of plaintiffs' contention and the basis for their rejection, namely the police report, fails to satisfy plaintiffs' burden.
Residence is the place where a party resides for some time, with the bona fide intent to make said place a residence for some length of time and with some degree of permanency. Id. Buziashvili v. Ryan, 264 AD2d 797 (2nd Dept. 1999); Siegfried v. Siegfried, 92 AD2d 916 (2nd Dept. 1983); Klatz v. Siroty, 62 AD2d 1011 (2nd Dept. 1978). Thus, with regard to residence, the police report fails to establish that Touba and Diouf resided in New York County merely because it lists them as having an address within that County. Moreover, with regard to whether Touba and Diouf were present in New York County when the answer was verified, said police report is wholly irrelevant, since logically one is not precluded by the county wherein one resides.
Based on the foregoing, plaintiffs were not entitled to reject Touba and Diouf's answer and were in fact compelled to accept the same. To that extent, since Touba and Diouf did not default and did in fact interpose an answer, plaintiffs are not entitled to a default judgment. It is hereby
ORDERED that Touba and Diouf's answer dated May 4, 2007, be hereby deemed served and accepted by plaintiffs. It is further
ORDERED that Touba and Diouf serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days of entry of this Order.
This constitutes this Court's decision and Order.