Patrick M. Connors ()
Super Bowl XLVIII is less than two weeks away. Football fans in the New York metropolitan area anxiously await the first cold climate championship NFL game played out of doors since Jan. 2, 1966. On that date, one year prior to what is now referred to as Super Bowl I, the Green Bay Packers defeated the Cleveland Browns at muddy Lambeau Field in the NFL title game. Five inches of wet snow blanketed the small city on the morning of the game, and most fans were still stuck in traffic at kickoff time!
New York Giants fans will confirm that small things matter in these games. They were the beneficiaries of the closest margin of victory in a Super Bowl, when in 1991 they defeated the Buffalo Bills 20-19. The game rested on the right toe of Bills kicker Scott Norwood with eight seconds remaining, but his field goal attempt sailed one foot outside the right goalpost. That miss, commonly known as “Wide Right,” and a host of well-executed plays in tight circumstances have amounted to four Super Bowl victories for the Giants.
Lawyers will similarly confirm that small things can matter greatly in litigation. Recently, we have observed some decisions that may have turned on relatively minor matters such as verification and the proper use of an affirmation. These decisions, reviewed below, demonstrate that seemingly menial tasks performed properly in the trenches of a lawsuit can help tip the scales of justice in one’s favor.
In most instances, the main supporting and opposing papers on a motion are affidavits. There have been some interesting decisions of late on the use of affidavits and verified pleadings in the context of motion practice. The decisions have impact for both the personal injury and commercial bar, as the issues arise with frequency in both tort and contract actions.
CPLR 105(u) states that a “‘verified pleading’ may be utilized as an affidavit whenever the latter is required.” Thus, for example, a verified complaint may be used as the affidavit of merits on an application for a default judgment. See CPLR 3215(f). It is helpful to know that point of law up front, especially if a default is in the forecast. If a summons and verified complaint are used to commence an action, they can be served simultaneously with any notice that may be required under CPLR 3215(g). If defendant does not appear, compiling the papers for the default judgment application will then be a relatively simple task. The triumvirate of papers necessary for the default judgment application under CPLR 3215(f) (affidavit of service, affidavit of merits, and affidavit of default) can all be readily produced by the attorney without the need for an additional affidavit from the client.
The plaintiff’s attorney must be careful in these instances to include sufficient detail in the verified complaint. In some decisions, courts have held that a complaint, though properly verified, failed to supply “proof of the facts constituting the claim,” as required by CPLR 3215(f). See, e.g., Beaton v. Transit Facility, 14 A.D.3d 637 (2d Dept. 2005). Then there is the issue of the verification itself. CPLR 3020(d)(3), a provision dating back at least to the horse and buggy days of 1879, permits an attorney, who almost always lacks personal knowledge of the client’s claim or defense, to nonetheless verify a pleading in certain instances. Despite this permission, in Mullins v. DiLorenzo, 199 A.D.2d 218, 219 (1st Dept. 1993), the court concluded that “a complaint verified by counsel amounts to no more than an attorney’s affidavit and is therefore insufficient to support entry of a default judgment pursuant to CPLR 3215.”
The express invitation in CPLR 3215(f) to allow a verified complaint to serve as an affidavit of merits can therefore be somewhat misleading. If the pleading is verified by an attorney or lacking in detail, it can result in denial of an application for a default judgment or render the judgment subject to subsequent attack under CPLR 5015(a). See Manhattan Telecommunications v. H & A Locksmith, 21 N.Y.3d 200 (2013) (failure to include a proper affidavit of merits in a default judgment application can be addressed by a motion under CPLR 5015(a) for relief from the judgment, but “does not justify treating the judgment as a nullity”).
To Defeat a Motion
Verification also played a key role in a recent Court of Appeals’ decision, essentially saving plaintiff’s action from the jaws of the statute of limitations. In Sanchez v. National R.R. Passenger, 21 N.Y.3d 890 (2013), plaintiff fell in Pennsylvania Station while trying to do the impossible: clean the place! The complaint and bill of particulars, both verified by the plaintiff herself, alleged that the accident occurred on Feb. 10, 2005. Defendant, contending that the accident occurred five days earlier, moved for summary judgment based on the expiration of the statute of limitations. Defendant submitted the affidavit of plaintiff’s supervisor with contemporaneous accident reports and timesheets indicating that she fell on Feb. 5.
The dispute, which would have been irrelevant in most cases, mattered greatly because plaintiff played it close to the wire by commencing the action on Feb. 6, 2008. See CPLR 214(5) (prescribing a three-year statute of limitations for personal injury claims); Siegel, New York Practice §231A (“Leave Time for Trouble”) (discussion of the multiple dangers that can arise when parties leave things, such as the commencement of an action, to the last minute).
The First Department affirmed the grant of defendant’s motion because it determined that the action was commenced one day too late. The majority concluded that plaintiff’s verified complaint failed to raise a question of fact because it conflicted with the “unequivocal documentary evidence, completed within days of plaintiff’s accident by an objective third party, that the accident occurred on February 5th….” While acknowledging that plaintiff expressed uncertainty at her deposition as to the date of her accident, a two-justice dissent would have reversed on the ground that “the verified complaint and bill of particulars suffice to raise an issue of fact as to the date of the occurrence.”
Court of Appeals Elevates Bill of Particulars to Status of Pleading. The Court of Appeals reversed, ruling that CPLR 105(u) permits both a verified complaint and verified bill of particulars to be considered as affidavits in opposition to a motion to dismiss. These two documents were relied upon by the court in finding that a question of fact existed regarding the date of plaintiff’s injury. The complaint was reinstated and the matter remanded to the Supreme Court where, as the dissent at the Appellate Division recommended, it might be subject to an immediate trial on the issue of when the claim accrued. See CPLR 3212(c) (allowing the immediate trial of a liability-related fact issue as long as it is shown to arise on a summary judgment motion that is grounded on a defense listed in CPLR 3211(a)); Siegel, New York Practice §284 (“Immediate Trial of Fact Issue Under CPLR 3212″).
Lawyers must remember that the bill of particulars is not technically a pleading, but rather the expansion of one. See, e.g., Osgood v. KDM Development, 92 A.D.3d 1222 (4th Dept. 2012); D’Auria v. Kent, 80 A.D.3d 956, 957 (3d Dept. 2011) (“failure to include a bill of particulars [with motion for summary judgment] was not the omission of a pleading”). Yet, the court’s Sanchez decision treats it as one for purposes of CPLR 105(u). It may be the first decision to do so. Note too that if a pleading is verified, any bill of particulars in respect of it must also be verified and, furthermore, any bill of particulars in a negligence action must be verified regardless of whether the pleading is verified. CPLR 3044.
Future of Sanchez Holding?
It is important to emphasize that in Sanchez, the verified complaint and bill of particulars were used as the equivalent of affidavits in opposition to a motion for summary judgment. The case cited by the Court of Appeals in support of its analysis of CPLR 105(u), Travis v. Allstate Ins., 280 A.D.2d 394 (1st Dept. 2001), quotes from an earlier Fourth Department decision which stated that “[a] verified pleading is the equivalent of a responsive affidavit for purposes of a motion for summary judgment.” Hladczuk v. Epstein, 98 A.D.2d 990 (4th Dept. 1983) (emphasis added). CPLR 105(u) and the language in Sanchez do not limit the use of verified pleadings to situations in which one is responding to a motion for summary judgment, but lawyers desiring to use these pleadings in support of a motion should proceed with caution.
As noted above, a party’s pleading or bill of particulars can be verified by counsel, instead of the party. See CPLR 3020(d)(3). While it may be expedient to verify in this fashion during the infancy of the litigation, the procedure invites trouble down the road. For example, in Kaufman v. Medical Liability Mut. Ins., 92 A.D.3d 1057 (3d Dept. 2012), the court concluded that plaintiff’s assertion in a bill of particulars verified only by counsel did not qualify as proof in admissible form that could be considered in opposition to a motion for summary judgment.
The basis for the holding in Kaufman traces back to the Court of Appeals’ decision in Indig v. Finkelstein, 23 N.Y.2d 728 (1968), where the court unanimously held in a memorandum decision that “[t]he burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified.” See Schultz v. Von Voight, 86 N.Y.2d 865 (1995) (“Plaintiff’s sole reliance upon allegations contained in his pleadings and bill of particulars to establish the permanent nature of his injuries is insufficient to defeat the prima facie showing made by defendant”).
It is difficult to reconcile the court’s recent decision in Sanchez with its prior precedent on the subject. Until the point is clarified, lawyers submitting proof on a motion for summary judgment should proffer affidavits from those with personal knowledge rather than simply relying on verified pleadings or bills of particulars, especially those verified by counsel.
Defective Motion Papers
When motion papers contain defects or omissions that drive the decision, parties frequently attempt to cure the deficiencies via a renewal motion under CPLR 2221(e). See McKinney’s Supplementary Practice Commentaries, CPLR 2221, C2221:9. In a prior article in this space, we discussed Kalir v. Ottinger, 2011 WL 6968334 (Sup. Ct., New York Co. 2011), where defendant opposed a summary judgment motion with an attorney’s affirmation. See “Death by Procedure: Lapses Could Deal Fatal Blow to Claims, Defenses,” 247 (no. 97) New York Law Journal (May 21, 2012).
Under CPLR 2106, an attorney admitted to practice in New York is entitled to submit an affirmation when subscribed and affirmed by him or her to be true under the penalties of perjury, “with the same force and effect as an affidavit.” That provision was not available to the defendant in Kalir because the statute, by its terms, does not permit the submission of affidavits by someone who is a party to the action. The lack of a proper notarization rendered the defendants’ opposition papers insufficient and the court, therefore, granted plaintiff summary judgment on liability.
Citing First Department case law, which concluded that a motion for renewal may be granted to cure this type of procedural error, see, e.g., B.B. Y. Diamonds v Five Star Designs, Inc., 6 A.D.3d 263 (1st Dept. 2004), the Kalir court granted defendant’s motion and further concluded that, based on the submissions now properly before it, the prior award of summary judgment to the plaintiff could no longer stand.
The Kalir court observed that the Second Department appears to take a somewhat rigid position on such renewal motions, denying them regardless of the lack of prejudice if the party fails to provide a reasonable justification for the defects in the documents originally submitted. The Second Department recently confirmed this observation in Austin v. McPherson, 111 A.D.3d 610 (2d Dept. 2013). In Austin, a serious injury case, see Insurance Law §5102(d), the plaintiff opposed a motion for summary judgment with an affirmation from her chiropractor. In a prior appeal, the Second Department reversed Supreme Court and granted defendant’s motion for summary judgment ruling that the chiropractor’s affirmation was insufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury because the chiropractor was not qualified under CPLR 2106 to submit an affirmation.
The plaintiff then moved for leave to renew, submitting a notarized affidavit from the chiropractor. In a subsequent appeal, the Second Department affirmed the Supreme Court’s denial of the renewal motion concluding that the plaintiff failed to provide a reasonable justification as to why the chiropractor’s original submission was submitted as an affirmation and not properly notarized. See CPLR 2221(e) (motions for leave to renew “shall contain reasonable justification for the failure to present such facts on the prior motion”).
The Third Department appears to apply a rule similar to that in the First Department and allows a motion to renew to excuse a “simple procedural error.” Wilcox v. Winter, 282 A.D.2d 862, 864 (3d Dept. 2001). We were unable to find a Fourth Department decision addressing the matter.
Until the Court of Appeals weighs in on the issue, lawyers are advised to sweat the small stuff!
Patrick M. Connors is a professor at Albany Law School and has assumed the authorship of ‘Siegel, New York Practice’ (5th ed. 2011).