Summary
In Graybar, supra, the court first found it was “well settled” that the failure to verify or properly verify a petition did not deprive a court of subject matter jurisdiction Id at 221, 695 N.Y.S.2d 906.
Summary of this case from 3170 Atl. Ave Corp v. JereisOpinion
August 31, 1999
John Hannaway Law Offices, New York City, respondent pro se.
Cyruli Menken, L. L. P., New York City (Anthony H. Jones of counsel), for petitioner.
OPINION OF THE COURT
The Court previously granted, on June 29, 1999, respondent's motion for an order permitting respondent to reargue its prior motion to dismiss the petition. The Court now sets forth its reasons for denying the motion to dismiss and adhering to its prior order dated May 18, 1999.
For the purpose of decision, the Court, in its short order, had consolidated respondent's two identical motions involving the same parties but two separate commercial leases for office and storage space, respectively.
Respondent's motion raises a discrete question of law for the Court regarding the verification requirement of RPAPL § 741: whether CPLR § 3022, which provides that an objection to a defectively verified pleading is waived unless the objecting party objects with due diligence, applies to petitions in proceedings commenced pursuant to the R.P.A.P.L., where verification is mandatory.
Background and Contentions of the Parties
Petitioner served a notice of petition and an unverified petition upon respondent on March 25, 1999. On March 30, 1999, respondent served a verified answer which did not expressly object to the lack of verification of the petition. Instead, respondent's answer alleged, as an affirmative defense, that the "[p]etition fails to state a cause of action."
On April 23, 1999 (after petitioner moved for summary judgment), respondent cross-moved to dismiss the petition on the ground that the petition was unverified. This was the first time that respondent had expressly objected to the non-verification of the petition. In its cross-motion to dismiss on this ground. respondent argues that since R.P.A.P.L § 741 mandates verification of petitions in summary proceedings, the failure to annex the verification deprives the court of subject matter jurisdiction of the proceeding. Further, this alleged jurisdictional defect may not be waived by failing to object to the non-verification with due diligence, according to respondent, since CPLR § 3022, which otherwise requires a due diligence objection to non-verification, does not apply to summary proceedings brought under R.P.A.P.L § 741. Finally, respondent contends that even if the waiver provision did apply to this proceeding, respondent did not waive its objection to the non-verification because respondent alleged in its answer that, "[t]he Petition fails to state a cause of action."
Petitioner, in response to the cross-motion and the motion to reargue, claims that the petition had in fact been verified, but, according to petitioner's counsel, counsel simply neglected to annex the signed verification sheet to the petition that was served. The verification was subsequently provided to respondent at oral argument.
Further, on the merits, petitioner argues that even if the petition were unverified, such a defect would be inconsequential and certainly would not warrant dismissal since respondent admittedly failed to object to the non-verification with due diligence, that is, not until 29 days after the petition was served. Under these circumstances, according to petitioner, respondent waived any objection to the non-verification, a non-jurisdictional defect, under CPLR § 3022.
Discussion
Verification of pleadings is required only under certain circumstances in the Civil Practice Law and Rules (see CPLR § 3020 et seq.). CPLR § 3022 sets forth the "[r]emedy for [a] defective verification" where a pleading must be verified. That Rule provides, in pertinent part, that:
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. Id.
The foregoing remedy, together with the accompanying due diligence requirement, is clearly designed to produce among the parties in litigation a certain degree of certitude regarding the viability of their pleadings. Further, the waiver provision of CPLR § 3022 — that is, the provision which effectively excuses a defectively verified pleading — is "entirely appropriate in view of the technical nature of the objection and the remote prospect that the defective verification will operate to prejudice the recipient." Weinstein, Korn, Miller, New York Civil Practice, § 3022.03, at 30-525.
Here, respondent principally argues that the waiver provision of CPLR § 3022 does not apply in this proceeding because, according to respondent, this Court does not have subject matter jurisdiction over non-verified petitions. Specifically, respondent contends that since R.P.A.P.L § 741, which provides that petitions "shall" be verified, mandates the verification of petitions in summary proceedings, that essential requirement cannot be waived by operation of CPLR § 3022. Respondent distinguishes proceedings commenced pursuant to RPAPL § 741 from plenary actions where, for the most part, pleadings need not be verified. According to respondent, CPLR § 3022 applies to the latter but not the former.
Respondent relies, in support of its argument, upon Spring Creek Associates L.P. v. Thomas, N.Y.L.J., April 13, 1994 (Civil Court Kings Co. 1994), in which Civil Court expressly held that the waiver provision of CPLR § 3022 "is obviated and superseded . . . by RPAPL 741's requirement that petitions 'shall,' rather than 'may' be verified." Respondent also relies upon an unreported case which holds that Civil Court does not have "jurisdiction" over unverified or defectively verified petitions.
The Court disagrees with respondent's contention and with the holdings of the cases upon which respondent relies in support thereof. Those cases were wrongly decided.
First, the plain language of CPLR § 3022 indicates that it was intended to embrace proceedings commenced pursuant to R.P.A.P.L § 741, and other proceedings which mandate, rather than permit, verification of pleadings. Indeed, the statutory language of Rule 3022 limits its own applicability to precisely those "case[s] where the adverse party is entitled to a verified pleading" — i.e., those cases which mandate verification.
After all, a party is "entitled to a verified pleading" only when it can be said that a verified pleading is required or mandated. In fact, it is only in those cases requiring a verified pleading, that the adverse party "may treat [the non-verified pleading] as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do." Id. Rule 3022 exists, in other words, to provide a remedy, albeit one which must be speedily sought, in those situations where a verified pleading was required but not served.
Further, although not addressing the specific issue raised by respondent here, courts in other contexts have quite regularly applied the waiver provision and the due diligence requirement of CPLR § 3022 to proceedings in which verification was mandatory. See Matter of Giambra v. Commissioner of Motor Vehicles, 46 N.Y.2d 743, 745 (1978) (CPLR 3022 applies to verification of Article 78 petition, even though verification of such petition is mandatory); Matter of Colon v. Vacco, 242 A.D.2d 973 (4th Dept. 1997) (same); O'Neil v. Kasler, 53 A.D.2d 310 (4th Dept. 1976) (due diligence requirement of CPLR 3022 applies to both actions and special proceedings).
Aside from its cite to Spring Creek, respondent has failed to set forth any persuasive reason at all why this court should ignore the straight-forward language of CPLR § 3022 regarding the scope of its application. Thus, notwithstanding respondent's contentions to the contrary, the Court holds that CPLR § 3022 applies to proceedings commenced pursuant to RPAPL § 741, such as the proceeding here. This holding is consistent with New York City Civil Court Act § 908, which provides that "[v]erification of pleadings shall be governed by the CPLR." To the extent that Spring Creek Associates L.P. v. Thomas, supra, holds otherwise, this Court declines to follow that decision.
Nor is respondent correct regarding the effect of non-verification on this Court's jurisdiction. It is by now well-settled that the failure to verify or properly verify a petition, even in a summary proceeding commenced pursuant to CPLR § 741, does not deprive the court of subject matter jurisdiction and may not otherwise be deemed a "jurisdictional defect." Hablin Realty Corp. v. McCain, 123 Misc.2d 777, 778 (App. Term, 1st Dept. 1984); Phillips v. Mason, N.Y.L.J., June 29, 1982, p. 5, col. 1 (App. Term. 1st Dept.); Jackson v. New York City Housing Authority, 88 Misc.2d 121, 122 (App. Term. 1st Dept. 1976). Cf. Miller v. Board of Assessors, 91 N.Y.2d 82, 86 (1997) ("The lack of a proper verification on a tax certiorari petition is not a jurisdictional defect"). This court's subject matter jurisdiction over commercial landlord-tenant proceedings is simply not affected by the parties' failure to properly verify a petition.
Verification of a petition is "after all, . . . merely part of a pleading," Phillips v. Mason, supra, which "shall be liberally construed." CPLR § 3026. Further, "[d]efects [in pleadings] shall be ignored if a substantial right of a party is not prejudiced." Id. Thus, where a party submits a defectively verified pleading, "courts should disregard minor defects or permit ample opportunity to the parties to correct deviations from the prescribed form. . . . [since] [i]rregularities in the verification will rarely result in prejudice to a party or affect the substance of the litigation." Weinstein, Korn, Miller, New York Civil Practice, § 3022.04, at 30-527. See In re Lamb, 13 N.Y.2d 874 (1963) (failure to serve copy of verification required by Election Law is not a substantial defect).
Here, respondent did not object to the non-verified petition when it submitted an answer five days after being served with the petition. Indeed, it was not until 29 days after being served that respondent raised a specific objection to the non-verification. Under these circumstances, the court finds that respondent failed to exercise due diligence in objecting to the non-verification and thus could not properly treat the petition as a nullity. Any objection which respondent may have had was effectively waived.
Further, even if the Court were to find that the defect were not waived, the Court would grant petitioner leave to amend (CPLR § 3025), particularly given petitioner's claim that the petition had in fact been verified, but, according to petitioner's counsel, counsel simply neglected to annex the signed verification sheet, containing a conforming date, to the petition that was served. Indeed, the verification was subsequently provided to respondent at oral argument.
Finally, respondent's claim that it did in fact object to the non-verification when it alleged in its answer, served five days after service of the petition, that the "[p]etition fails to state a cause of action," is simply unavailing. Preliminarily, the Court need not address the question of whether a five-day delay in objecting suffices to meet the due diligence requirement under CPLR § 3022 since respondent's non-specific, fails-to-state-a-cause-of-action allegation was woefully inadequate to apprise petitioner of the defect of which respondent now complains. When a party objects to the verification of a petition, or the lack thereof, the notice of the objection "must state the defects relied upon specifically . . . so [that] the party whose pleading is [rejected would have] . . . a reasonable opportunity . . . to cure the defect or supply the omission." (Westchester Life v. Westchester Magazine Co., 85 N.Y.S.2d 34 [Sup. Ct., N Y Co. 1948].see, 5 Weinstein-Korn-Miller, NY Civ. Prac., § 3022.03, at 30-526.) Here, even assuming that the five-day delay overcomes the due diligence requirement, the alleged objection is clearly insufficient.
Accordingly, the court adheres fully to its decision dated May 18, 1999. Respondent's motions to dismiss are denied.