McKay v Vita

[*1] McKay v Vita 2009 NY Slip Op 51390(U) [24 Misc 3d 133(A)] Decided on June 29, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2008-1670 N C.

Robert B. McKay d/b/a CARNEY & McKAY, Respondent,

against

Theresa Vita, Appellant.

Appeal from a judgment of the District Court of Nassau County, Second District (Rhonda E. Fischer, J.), entered March 20, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,000.

Judgment reversed without costs and matter remitted to the District Court for a new trial.

Plaintiff, an attorney, brought the instant small claims action to recover amounts allegedly due and owing for services rendered to defendant, a former client, in connection with plaintiff's legal representation of defendant in a Supreme Court action.

At the commencement of the nonjury trial, an oath was administered only to defendant, and the trial proceeded, with both plaintiff and defendant testifying in their own behalf. A judgment was rendered in plaintiff's favor.

Regardless of profession or affiliation to the court system, all persons testifying in a civil action, even in a small claims action, must be sworn (see Diederich v Del Prior, 18 Misc 3d 132[A], 2008 NY Slip Op 50084 [App Term, 2d & 11th Jud Dists 2008]; Trensky v Johnson, 1 Misc 3d 50 [App Term, 1st Dept 2003]; Uniform Civil Rules for the District Courts [22 NYCRR] § 212.41 [j]); see also Siegel, NY Prac § 388, at 655 [4th ed]). Plaintiff's status as an "officer of the court" does not dispense with this requirement (see Trensky, 1 Misc 3d at 52).

In view of the foregoing, the judgment is reversed and the matter is remitted to the District Court for a new trial.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009