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.
thecplrblog 