[*1]
Mendicino Green Apt. Corp. v Casimir
2011 NY Slip Op 51367(U) [32 Misc 3d 1220(A)]
Decided on July 21, 2011
District Court Of Nassau County, First District
Fairgrieve, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2011
District Court of Nassau County, First District


Mendicino Green Apartment Corp., Petitioner(s)

against

Ardith Casimir, Respondent(s)




LT-000875-11



Dan M. Blumenthal, Esq., Schneider Mitola, LLP, Attorneys for Petitioner, 666 Old Country Road, Garden City, New York 11530, 516-393-5555; John W. Freeman, Esq., Attorneys for Respondent, 135-49 234th Street, Jamaica, New York 11422, 347-581-4485.

Scott Fairgrieve, J.



Petitioner moves to strike the affirmative defenses and counterclaim of Respondent and summary judgment for a judgment of possession, together with a money judgment in the sum of $6,329.00 for arrears and legal fees and disbursements.

This application is only supported by the affirmation of Petitioner's counsel Dan M. Blumenthal, dated March 15, 2011. Mr. Blumenthal's whole basis for the requested relief is the claim that the verification of the answer by attorney John Freeman is defective, thereby affording Petitioner the relief requested.

Petitioner's motion is denied. There is no requirement that an answer in a landlord/tenant dispute be verified. See Landlord & Tenant Practice in New York, Daniel Finkelstein & Lucas A. Ferrara, Section 14:239 which states: [*2]

"A written Answer is not required to be verified."[FN1]

Thus, Petitioner's request to dismiss on this ground is denied. Even if the issue of the verification of the answer were necessary to this summary proceeding, this Court rules that the verification was proper.

According to Practice Commentaries C3021:2 Form of Verification by Other Than Party, "[t]he nonparty who verifies must set forth in the affidavit the grounds for her belief of anything in the pleading that is not based upon her knowledge, and a statement of why the party is not doing the verifying." In Capital Newspapers Divisions-Hearst Corp. v. Vanderbilt the court stated that although a strict application of CPLR 3021 would result in the dismissal, CPRL 3026 provides that pleadings should be liberally construed. 44 Misc 2d 542 [Sup Ct, Albany County 1964].

Respondent filed a verified answer and counterclaim, denying the original claims, stating lack of personal jurisdiction and constructive eviction as affirmative defenses, and a counterclaim for breach of warranty of habitability according to RPL § 235. The verification stated that "as to those matters not stated upon my knowledge is based upon conversations with Ardith Casimir and a review of the documents related to this case." The verification goes on to state that Ardith Casimir resides outside the county in which the attorney works. The answer therefore satisfies the requirements set forth in CPLR § 3021.

Further, a verification, as part of a pleading, should be liberally construed, ignoring defects unless a substantial right of a party is prejudiced. SLG Graybar, L.L.C. v. John Hannaway Law Offices, 182 Misc 2d 217, 222, 696 N.Y.S.2d 645, 649 [Civ Ct, New York Co. 1999]; CPLR § 3026.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 21, 2011

Footnotes


Footnote 1:Robie-Harmm Properties, Inc. v. Seal Dynamics, Inc., N.Y.L.J., 3/4/80, p. 11, col. 5 (App. Term, 9th and 10th Jud. Dists.) ("Although section 741 of the RPAPL requires that a petition be verified, section 743 of the RPAPL not only does not require that an answer be verified, but gives the tenant an option of submitting an answer either orally or in writing. . . . "); Turk v. B. Jakobsons & Son, 188 Misc. 203, 66 N.Y.S.2d 430 (App. Term 1946) ("it is now optional in the tenant or person in possession or claiming possession to file an oral or unwritten unverified answer").