CPLR R. 3211(e) Number, time and waiver of objections; motion to plead over
CPLR § 3020 Verification
CPLR § 105 Definitions
(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.
Deutsche Bank Natl. Trust Co. v Young, 2009 NY Slip Op 07578 (App. Div., 2nd, 2009)
Contrary to the appellants' contention, the Supreme Court did not err in determining that they waived the issue of standing by failing to timely appear or answer (see CPLR 3211[a][3], [e]; HSBC Bank, USA v Dammond, 59 AD3d 679; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239).
Simple enough.
Urban Justice Ctr. v Silver, 2009 NY Slip Op 07506 (App. DIv., 1st, 2009)
Plaintiff Urban Justice Center (UJC) lacks standing to bring this action. While it alleges vaguely that the prohibitions on communication contained in the Assembly and Senate rules as to what constitutes "official mail" for purposes of Legislative Law § 16 interfere with its ability and that of its clients to receive the communications necessary to enable them to measure the responsiveness and efficacy of their elected representatives while determining the best use of their limited advocacy resources, this is not an infringement unique and distinct to UJC and its clients. All citizens have the right to open access to their elected representatives, and are deprived of that right when communications from their legislators are censored. UJC has failed to allege a personally concrete and demonstrable injury distinct from that suffered by the public at large (see Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 587 [1998]). For the same reason, UJC also lacks third-party standing to raise a First Amendment claim on behalf of its clients (see Matter of MFY Legal Servs. v Dudley, 67 NY2d 706, 708-709 [1986]). Because it has not alleged that the rules and practices at issue have caused it "injury by way of an added burden on [its] resources," or that its need to litigate this action on behalf of its clients is such a "central concern of our society" as to justify giving it standing without otherwise meeting the requirement of showing injury-in-fact, there is no basis for conferring organizational standing upon UJC under Grant v Cuomo (130 AD2d 154, 159 [1987], affd 73 NY2d 820 [1988]).
A little more complicated.
Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (App. Div., 2nd, 2009)
Wells Fargo also contends that the assignment is valid, as it is retroactive to October 28, 2007, a date prior to the commencement of the action. Wells Fargo again relies on Hoovis, where the retroactive assignment was effective on May 1, 1997, prior to the commencement of the action on June 19, 1997 (see Bankers Trust Co. v Hoovis, 263 AD2d at 938). In Hoovis, however, the defendant was unable to contradict the plaintiff's documentation demonstrating that delivery of the note and mortgage occurred prior to the initiation of the action. Here, it is clear that the date of the execution of the assignment was after the commencement of the action. If an assignment is in writing, "the execution date is generally controlling and a written assignment claiming an earlier effective date is deficient unless it is accompanied by proof that the physical delivery of the note and mortgage was, in fact, previously effectuated" (LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing that in some circumstances parties to an agreement may bind themselves retroactively, "the fiction of retroactivity . . . should not be applied to affect adversely the rights of third persons" (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2 Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We disagree with the contention of Wells Fargo that public policy favors permitting less than strict compliance with the requirement that, in order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the subject mortgage.
Wells Fargo also argues that if the action were to be dismissed, the result would be a waste of judicial resources, as it would simply commence another action as soon as the original action was dismissed. Wells Fargo might have reached this conclusion earlier in its calculus to commence the lawsuit prior to the execution of the assignment.
Significantly, Wells Fargo's attorney submitted a verification pursuant to CPLR 3020(d)(3), which allows an attorney to verify the complaint if the party is not in the county where the attorney maintains [*4]an office. "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 as to those matters, he believes it to be true" (CPLR 3020[a]). "Since the verification makes the pleading, or those parts of the pleading that are verified, sworn data, a verified pleading is the equivalent of an affidavit, CPLR 105, and may be used for the same purposes" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:2). When an attorney verifies, he or she affirms under the penalties of perjury (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:9).
In the verification, Wells Fargo's attorney affirmed the complaint to be true to the best of his knowledge, and his belief as to matters stated to be alleged on information and belief was based upon "correspondence, memoranda and statements of account in affirmant's possession." The complaint included a paragraph that stated Wells Fargo was "now the sole, true and lawful owner of record of the bond(s), note(s) and mortgage(s) securing the Mortgaged Premises." This averment was not based on information and belief and could not have been true on the date of the verification, November 29, 2007, since the actual execution of the assignment did not take place until December 4, 2007. Thus, the complaint contained a misstatement of a material fact which is not excused simply because the attorney was the one who verified the complaint.
Note the Court's comment on the verification. Rough.
Maldonado v Altemburger, 2009 NY Slip Op 07507 (App. Div. 1st, 2009)
This is the second action brought by plaintiff to recover damages for injuries he allegedly sustained in a car accident. The first action was dismissed as a nullity, because the person who was named as the sole defendant had died before the action was commenced (see Maldonado v Law Off. of Mary A. Bjork, 64 AD3d 425 [2009]). This action must be dismissed because the named defendant is not the personal representative of the decedent's estate (see id.; Marte v Graber, 58 AD3d 1, 3 [2008]).
It does not avail plaintiff that defendant did not cooperate with him in his efforts to obtain the necessary documentation for a SCPA 1002(1) petition for the appointment of an administrator. Plaintiff apparently failed to timely seek a court order to obtain the documentation.
Not quite a standing issue. More of a there-isn't-anyone-to-sue issue. Not even that. More of a who-is-in-charge-of-this-thing issue.
