CPLR § 105 Definitions
(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.
Griffin v 1869 Utica Ave. Corp., 2009 NY Slip Op 51585(U) (App. Term, 2nd, 2009)
CPLR 5015 (a) (1) provides that a court which rendered a judgment
may, upon motion, relieve a party from such judgment upon the ground of
excusable default. In order to obtain such relief, however, the movant
must establish that the default was excusable and that there is a
meritorious defense to the action (see e.g. Kaplinsky v Mazor,
307 AD2d 916 [2003]). In the instant case, defendant failed to
establish by competent evidence a reasonable excuse for defendant's
default in appearing. The affidavit of Mr. Greenbaum's daughter
consisted of conclusory allegations regarding the state of her father's
health, which were insufficient to constitute a reasonable excuse for
the default, particularly in light of the fact that the record
demonstrates that defendant was properly served at Mr. Greenbaum's
address, the corporate address, as directed by the court.In view of our determination, we need not address the question
of whether defendant established the existence of a meritorious
defense. However, we note that although a verified pleading may be
accepted in lieu of an affidavit of merit (CPLR 105 [u]), it must
contain evidentiary facts from a person with knowledge in order to
establish the merits of the defense (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). The verified answer in the instant case was insufficient as an affidavit of merit.
Finally, we reject defendant's argument that it was improper for
the court to deem defendant to be self-represented if it did not secure
counsel. A corporate defendant may not obstruct or impede the progress
of litigation by refusing to retain counsel (see e.g. Valisa MFG, LLC v 54 Group, Ltd., 19 Misc 3d 1136[A],
2008 NY Slip Op 51017[U] [2008]), and, where a corporate defendant
fails to appear by attorney, it is proper for a court to hold said
defendant in default (id.; see also World on Columbus, Inc. v L.C.K. Rest. Group, Inc., 260 AD2d 323 [1999]).
The bold is mine. Most people are unaware of 105(u). While the provision offered no benefit here, it will in countless cases, should people take advantage of it. In vacating defaults, CPLR § 317 is another underutilized rule.
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