Sweat the Small Stuff!

, New York Law Journal

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Patrick M. Connors
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.

Proper Verification

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.

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