Express Repair LLC v Mykhailov

Civil Court of the City of New York, Kings County

Decided on May 1, 2026

Index No. CV-014737-25/KI

Chidi A. Eze, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1

Answering Affidavits/ Affirmations 2

Upon the foregoing cited papers, the Decision/ Order on plaintiff's motion for summary judgment is as follows:

Plaintiff commenced this case on or about June 27, 2025, seeking to recover from defendant unremitted payments received by defendant from job referred to him by plaintiff, in the amount of $2,597.48. According to the moving papers, plaintiff, as hiring party, gets repair jobs, refers them to defendant, an independent contractor, to execute, and upon completion, the clients would pay defendant, and at the end of each month, defendant would tender all monies received from such jobs for each month. Defendant filed his answer on or about January 12, 2026. Plaintiff is seeking remittance for the month of May 2025. Defendant resigned from working with plaintiff in June 2025.

Legal Standard

Under CPLR 3212, once the movant establishes a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Mere conclusions, unsubstantiated assertions, and self-serving allegations are insufficient to defeat a motion for summary judgment. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Discussion

First, plaintiff urges summary judgment on the ground that defendant's answer is a nullity because it was not verified nor sworn to and therefore fails to conform to CPLR §§3020, 3022 [*2]and 2106. Contrary to plaintiff's claim, the answer filed by defendant on January 12, 2026, pursuant to the order of Judge Mimes, was properly attested to pursuant to CPLR §2106, which permits an affirmation of the truth of a statement to be used in lieu of an affidavit.

"The verification of a pleading shall be made by the affidavit of the party, or, if two or more parties united in interest are pleading together, by at least one of them who is acquainted with the facts . . . " CPLR §3020(d). Defendant's answer was sworn to pursuant to CPLR §2106.

Moreover, plaintiff did not verify its complaint, thus defendant was not required to verify his answer. It is well settled that when a plaintiff's complaint is not properly verified, a defendant's answer need not be verified. Drake v. Touba Harou Cayor Transp., Inc., 19 Misc 3d 1102(A), 859 N.Y.S.2d 894 (Sup Ct., Bronx County 2008) (citing Morris v. Fowler, 99 A.D. 245 [1st Dept.1904]).

Even, assuming arguendo, that plaintiff was right that defendant's answer was not verified, summary judgment is hardly the remedy under such situation. Plaintiff could move to compel a verified answer among other things. Although this defendant here verified his answer, a defendant may choose not to verify his/her answer. See Travelers' Ins. Co. v. Mulligan, 231 A.D. 222, 247 N.Y.S.85 (1st Dept. 1931); David Webb v. Rosenstiel, 66 Misc 2d 29, 319 N.Y.S.2d 877 (Supreme Court, NY County 1970); see also CPLR §3020 (b)(1). Still further, CPLR §2036 clearly states that "Pleadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced."

Next, plaintiff alleges that there exists an agreement between itself and defendant that spell out the parties' obligations in the alleged work arrangement. In its supporting affirmation, attorney Sara Leston, Esq., made reference to several sections of this agreement, and also referred to what she called "Onboarding Packet", as documents supporting the alleged breach by defendant, however neither the agreement nor the 'Onboarding Packet' was attached to her moving papers. Without such showing the court is unable to determine whether or not there existed an agreement between the parties, and whether it was breached by defendant. Thus, plaintiff has failed to meet its prima facie burden, and is therefore not entitled to summary judgment, regardless of the sufficiency of the opposing papers.

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment is DENIED.

This constitutes the decision and order of this court.

Date: 05/01/2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)