CPLR R. 5015
CPLR
§ 105 Definitions
(u) Verified
pleading. A “verified pleading” may be utilized as an affidavit
whenever the latter is required.
Ramos v Jake Realty Co., 2010 NY Slip Op 50934(U (App. Term, 1st, 2010)
While plaintiff's excuse for his failure to appear for trial was hardly
overwhelming, under the particular circumstances here presented and in
light of the policy favoring the resolution of actions on their merits,
it was sufficient to warrant affording plaintiff vacatur relief.
Plaintiff's attorney, while on vacation abroad, received a message from
defense counsel requesting an adjournment of the trial date due to the
unavailability of a defense witness. Plaintiff's attorney orally
consented to the adjournment and, believing that defense counsel would
obtain the adjournment, did not appear for trial. Notably, a letter from
defense counsel to the court, which defense counsel shared with
plaintiff's counsel, corroborates plaintiff's counsel's belief that
defense counsel would seek the adjournment. Although the better practice
would have been for plaintiff's counsel to appear for trial to confirm
that the matter would be adjourned (and be prepared to go forward if the
request for the adjournment was denied), we conclude that plaintiff's
default was attributable to excusable law office failure (see
generally Delagatta v McGillicuddy,31 AD3d 549 [2006]; Cannon v
Ireland's Own, 21 AD3d 264 [2005]). Plaintiff also established a
potentially meritorious claim against defendants through his verified
pleadings (see Gironda v Katzen, 19 AD3d 644 [2005]; Key Bank,
N.A. v NY Cent. Mut. Fire Ins. Co., 144 AD2d 847 [1988]). We note
too that the Appellate Division, First Department previously concluded
that numerous triable issues exist in this action precluding summary
judgment in defendants' favor (Ramos v Jake Realty Co., 21 AD3d
744 [2005]).
Notice the meritorious defense through the verified pleadings bit. See, CPLR
§ 105.
Would the the excuse have flown in the Second Department? Probably not. A.B.
Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137(A) (App. Term, 2nd, 2009) ("Plaintiffs'
allegation of law office failure is factually insufficient (see
Robinson v New York City Tr.
Auth., 203 AD2d 351 [1994]), in that they failed to explain whether
the normal two-part
procedure for assigning a per diem attorney to cover a court appearance,
as outlined in their
submission to the court, was followed in its entirety.").
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