Gallo v Chimenti

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[*1] Gallo v Chimenti 2018 NY Slip Op 51960(U) Decided on December 31, 2018 Supreme Court, Nassau County Brandveen, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2018
Supreme Court, Nassau County

John Gallo, Plaintiff,

against

Kathleen Gallo Chimenti a/k/a KATHLEEN GALLO, Defendant.



609535/18



ATTORNEY FOR PLAINTIFF:

GARY N. WEINTRAUB, LLP

BY Gary N. Weintraub, Esq.

44 Elm Street, Suite 16

Huntington, N.Y. 11743

631-421-2500

gweintraub@actionlaw.com

ATTORNEY FOR DEFENDANT:

LAW OFFICES OF E. MICHAEL ROSENSTOCK P.C.

BY E. Michael Rosenstock, Esq.

55 Maple Avenue, Suite 206,

Rockville Centre, N.Y. 11570

516-766-7600

emrosenstock@rosenstocklaw.com
Antonio I. Brandveen, J.

The following papers having been read on this motion:



Notice of Motion, Affidavits, & Exhibits 1-2

Answering Affidavits3

Replying Affidavits4-5

Briefs: Plaintiff's / Petitioner's

Defendant's / Respondent's

_______________________________________________________________________

Plaintiff (former husband) moves for an order granting a default judgment against the defendant and setting the matter down for an inquest is denied.

Defendant (former wife) moves for an order compelling the plaintiff to accept defendant's verified answer served on August 28, 2018, or alternatively, extending defendant's time to answer the complaint pursuant to CPLR §§2004 or 3012 (d).

The motions at bar illustrate the perilous, unwise practice of not having clients verify pleadings and submit affidavits in support of the relief they are seeking, as well as the continued outmoded dichotomy in this highly technological age of allowing attorneys, if they do not have personal knowledge of the facts, to verify pleadings only if their office is not in the same county as the party.

This is a post-matrimonial judgment action to inter alia compel the specific performance of a stipulation (dated May 6, 2003) and order (dated June 16, 2003, Ross, J.), which was not merged into the judgment of divorce (dated March 15 and entered March 18, 2004), and directed the defendant herein to pay to the plaintiff, on or before the youngest child's 21st birthday, plaintiff's "equitable share" of the former marital residence in accordance with the terms of said stipulation. After negotiations between respective counsel for the parties were not fruitful, the plaintiff's attorney chartered the procedural course at bar instead of simply filing a motion in the matrimonial center. The summons and straightforward fifteen paragraph complaint, verified by plaintiff's attorney pursuant to CPLR 3020 (a) on the ground that counsel's office is in Suffolk County while plaintiff resides in Nassau County, was electronically filed in the Nassua county Clerk's office on July 18, 2018, and then subsequently served on the defendant pursuant to CPLR 308 (4). The process server made three attempts at service: Tuesday, July 24, 2018, at 6:55 p.m., Wednesday, July 25 at 7:51 a.m., and Friday, July 27 at 2:38 p.m., at which time the process server "verified the address with Alex, who was working at the given address," and affixed the process to the front door; no explanation was given as to why Alex was not handed process. The process server mailed the process to the defendant on July 31, 2018, and filed it with the Nassau County Clerk on August 6, 2018.

On August 28, 2018, the defendant filed an answer which was verified by her attorney in contravention of CPLR 3020 (a) since defendant's residence, and her counsel's office, are both in Nassau County. The answer simply "1. [d]enies knowedge and information sufficient to form a belief as to the allegations set forth paragraphs 3,4,5,6,7,8 and 11, [and] 2. "[d]enies each and every allegation set forth in [paragraphs 9, 12, 13, and 14." Defendant's attorney affirmed "that the reason why the verification is not made by the defendant is that it is being filed on an [*2]emergency basis to avoid a default and there is insufficient time to contract (sic) the defendant." Plaintiff's attorney immediately rejected that same day the answer filed by the defendant, and treated it as a nullity pursuant to CPLR 3022 on the grounds that the "answer was due prior to August 28, 2018," defendant's counsel had sufficient time to contact defendant, and the verification of the answer was defective. Defendant subsequently executed on September 20, 2018, and filed on September 21, 2018, a substituted verification to her August 28 answer verified by her attorney. Plaintiff's attorney again rejected pursuant to CPLR 3022 the August 28 answer which was now verified by the defendant herself on September 20, 2018. The defendant did not explain in her verification why she did not or could not verify the answer earlier.

The motion for a default judgment (made without the actual stipulation or judgment of divorce annexed as exhibits), and the cross-motion to compel the acceptance of the answers filed or extend defendant's time to answer, were consequently filed and served, with neither party submitting affidavits in support of the relief they were seeking. Perhaps that is why defendant's attorney did not also alternatively move to vacate defendant's purported default in timely answering the summons and complaint; instead he hinges the success of defendant's cross-motion hinges totally on this Court agreeing with counsel's liberal interpretation and application of CPLR 3022 in context with CPLR 3026.

There is a general presumption, in the initial stages of litigation, that the complaint has merit and that the defendant's answer represents a meritorious defense. When procedural rules regarding pleadings are not technically followed, those presumptions may be required to be proved as potentially meritorious. Here, the crux of the matter before the Court is whether the defendant's "verified" answers were not timely and defective, and if not, whether as a result there is a negative consequence.

CPLR 3012 (d) states in relevant part that "[u]pon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default [emphasis added]." Although the Appellate Division, Fourth Department in Case v. Cayuga County, 60 AD3d 1426, 1427 [2009] held that an affidavit of merit is not a precondition to obtaining relief under CPLR 3012 (d), the Second Department has required that in order to "compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action [citations omitted]" (Loughran



v. Gianoti, 160 AD3d 709, 710 [2d Dept 2018]; see, Clarke v. Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194, [2d Dept 2017]). The "verified" answer filed on August 28, 2018, was clearly timely, contrary to plaintiff's attorney's contention, since the service of process pursuant to CPLR 308 (4) to be made was deemed complete on August 16, 2018, ten days after the filing of the affidavit of service, and defendant's time to appear -"by serving an answer or notice of appearance, or by making a motion..." (CPLR 320[a]) - was then required to be made within thirty days, i.e., by September 15, 2018 (see, CPLR 320 [a]). The Court notes that the defendant had the option of moving, pursuant to CPLR 3211 (a)(8),to dismiss the complaint for lack of personal jurisdiction on the ground that the process server did not exercise due diligence by attempting to serve process on a Saturday and by attempting to ascertain whether the defendant was employed, and if so, attempting to serve her at her place of employment in accordance with the seminal Appellate [*3]Division, Second Department case of Estate of Waterman v. Jones, 46 AD3d 63, 66 [2d Dept 2007]).

However, the answer verified by the defendant on September 20 and electronically filed on September 21, 2018, was not timely by six days. No excuse or meritorious defense has been proffered and demonstrated by the defendant.

"The requirement of verification is supposed to encourage honesty in pleading" (Siegel-Connors, New York Practice § 232 at 566 [6th ed 2018].

CPLR 3020, subsection (a), states in relevant part that "[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..." Subsection (d) of CPLR 3020 states in pertinent part



that "[t]he verification of a pleading shall be made by the affidavit of the party,... except: ....3. if the party....is not in the county where the attorney has his office,....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."

Here the court is presented with a timely, yet technically defective, answer since it was verified by defendant's attorney who has an office in the same county as his client. What is the effect of that?

CPLR 3022 directs 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."

CPLR 3026 mandates that "[p]leadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced."

Both the complaint and original answer were not based upon the personal knowledge of the parties but instead were based on documents and conversations respective counsel had with their clients. Thus, defense counsel's "verification" has as much probative value as the plaintiff's attorney's verification (see, Zuckerman v. City of New York, 49 NY2d 557, 563 [1980]). In view of the Unified Court System's continuous attempts to incorporate the electronic technological advancements into the administration of justice, verification, pursuant to CPLR 320 (a), should be amended to either (1) permit attorneys, regardless of location, to verify pleadings, or (2) eliminate attorney verification entirely, or (3), as advocated by the late Professor David D. Siegel, be "abandoned" (Siegel, New York Practice, § 232 at 403 [5th ed 2011] ["verification still smiles grotesquely from the pages of the CPLR"]). The draconian result sought by the plaintiff as a result of the defendant's attorney's timely, yet defective, verification cannot be granted by this court since plaintiff has not demonstrated that any of his rights have been prejudiced by the defective verification. Consequently the defect should be ignored, and will be treated by this Court simply as an unverified pleading (see, CPLR 3022; CPLR 3016; CPLR § 2001; Duerr v. 1435 Tenants Corp, 309 AD2d 607 [1st Dept 2003]).

Accordingly, the motion by the plaintiff for an order granting a default judgment is denied.

The cross-motion by the defendant for an order inter alia compelling the plaintiff to accept defendant's answer filed on August 28, 22018, is granted to the extent that the "verified" answer filed by defendant's attorney on August 28, 2018, is deemed to be a timely, unverified answer.

To expedite the resolution of this action, the Court directs the parties to appear for a settlement conference on January 23, 2019, at 10:30 a.m. If the case cannot be resolved, the Court will appoint an appraiser to appraise the value of the former marital residence.

The foregoing constitutes the decision and order of this Court.



Dated: December 31, 2018

E N T E R:

___________________________

J. S. C.