M & O Enters. Inc. Shopper Vil. Div. Profit Sharing Plan v Coletta
Annotate this CaseDecided on October 2, 2018
District Court of Nassau County, First District
M & O Enterprises Inc. Shopper Village Division Profit Sharing Plan, Petitioner,
against
Michael Coletta, SUSAN A. COLETTA A/K/A SUSAN COLETTA, ALEXIA COLETTA, "JOHN DOE" and "JANE DOE," Respondents.
LT-002959-18NA
John Tangel, Esq., of counsel to Lawrence and Walsh, P.C., attorneys for Petitioner, 215 Hilton Avenue, Hempstead, New York 11550, (516) 538-2400; Law Offices of Francis X. Casale, Jr., Esq., attorneys for Respondents, 115 Broad Hollow Road, Suite 350, Melville, New York 11747, (631) 293-3332.
Scott Fairgrieve, J.
The following named papers numbered 1 to 3 submitted on this Motion to Dismiss
on September 25, 2018
papers/numbered
Notice of Motion and Supporting Documents 1
Order to Show Cause and Supporting Documents
Opposition to Motion 2
Reply Papers to Motion 3
Petitioner M & O Enterprises Inc. Shoppers Village Division Profit Sharing Plan (hereinafter referred to as "M & O") commenced this post foreclosure eviction against Respondents Michael Coletta, Susan A. Coletta aka Susan Coletta and Alexia Coletta (hereinafter referred to as "Coletta").
The Petition, dated May 15, 2018, is verified by Scott Kiley who states that he is the Manager of Woodfield Twelve, LLC.
The Affidavits of Service demonstrate that Respondents were served on May 25, 2018 with the Notice of Petition and Petition.
Respondents moved by Notice of Motion dated September 10, 2018 to dismiss this proceeding due to the alleged defective verification of the Petition by Scott Kiley as Manager of Woodfield Twelve, LLC.
In opposition to the Motion to Dismiss, Petitioner submits the Affidavit of Scott Kiley, sworn to September 18, 2018. Scott Kiley avers that he is the Trustee of Petitioner M & O. Mr. Kiley is also the sole managing member of Woodfield Twelve, LLC. Mr. Kiley states that he is [*2]familiar with the business records of both M & O and Woodfield "as their respective Manager/Trustee." He also states that "I authorized the transfer of the deed to the subject property from Woodfield to M & O prior to the commencement of this action."
Mr. Kiley profers the following mistake concerning verification of the Petition:
"On May 15, 2018 I personally read and reviewed and verified the 4th Petition as Trustee of M & O. However, due to a scrivener's error, the Verification I executed indicates I am Manager of Woodfield, which is true. However, it was my intention to sign the Verification as Trustee of M & O, the Petitioner named in the Petition that I personally read on May 15, 2018. My attorney advises that this error is De Minimis and maybe cured by an Amended Verification. As a result, it is respectfully requested that the Court grant leave to serve the attached Amended Verification or, in the alternative, deem the Verification amended Nunc Pro Tunc and allow M & O to immediately proceed to trial without further delay."Decision
The Motion to Dismiss is denied in its entirety.
Respondents were required to act with due diligence to reject a defective verification. See 2 NY Prac., Com. Litig. in New York State Courts, § 8:158 (4th), entitled Defective Verifications. In the case at bar, Respondents were served with the verified Petition on May 25, 2018. The Motion to Dismiss was served on/or about September 10, 2018. The foregoing does not constitute due diligence by Respondents to reject the verification. This inaction leads to waiver of the alleged defective verification.
Even if this court were to regard the verification defective, no prejudice has been shown by Respondents to allow Petitioner to amend the verification without dismissal.
Scott Kiley states that he is the Trustee for Petitioner. It is further stated that Scott Kiley intended to verify the Petition on behalf of the Petitioner, but instead a scrivener's error was made.
Under this circumstance, the better procedure is to allow Petitioner to serve an amended verification. See Aviles v. Santana, 56 Misc 3d 1206(A), 2017 WL 2938560 (Civ Ct, City of New York, Bronx Co, 2017); STP Assoc., LLC v. Drasser, 33 Misc 3d 1235[A], 941 NYS2d 541 (Dist Ct, Nassau Co, 2011). Judicial economy is furthered by allowing service of a corrected verification.
Petitioner is directed to serve an amended verification no later than October 10, 2018.
Respondents shall serve an answer no later than October 20, 2018. This case shall proceed to trial on October 30, 2018 at 10:00 a.m. and is marked final.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated: October 2, 2018
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