McKay v Vita, 2009 NY Slip Op 51135(U) (App. Term, 2nd, 2009)
Plaintiff, an attorney, brought the instant small claims action to
recover amounts allegedly due and owing for services rendered to
defendant, a former client, in connection with plaintiff's legal
representation of defendant in a Supreme Court action.
At the commencement of the nonjury trial, an oath was
administered only to defendant, and the trial proceeded, with both
plaintiff and defendant testifying in their own behalf. A judgment was
rendered in plaintiff's favor.
Regardless of profession or affiliation to the court system,
all persons testifying in a civil action, even in a small claims
action, must be sworn (see Diederich v Del Prior, 18 Misc 3d 132[A], 2008 NY Slip Op 50084 [App Term, 2d & 11th Jud Dists 2008]; Trensky v Johnson, 1 Misc 3d 50 [App Term, 1st Dept 2003]; Uniform Civil Rules for the District Courts [22 NYCRR] § 212.41 [j]); see also
Siegel, NY Prac § 388, at 655 [4th ed]). Plaintiff's status as an
"officer of the court" does not dispense with this requirement (see Trensky, 1 Misc 3d at 52).
In view of the foregoing, the judgment is reversed and the matter is remitted to the District Court for a new trial.
The bold is mine.