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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Im being sued in the state of NY for a breach of contract,

Customer Question

I'm being sued in the state of NY for a breach of contract, tortious interference and unfair competition. The suit has a page at the end by the plaintiff 'sworn' that the statements are true. I have quick questions:

1) does this type of complaint need to be verified? if not, which ones do?
2) if it needs to be verified, and the end page has a signature but its not notarized, can i t be nullified?
3) if it can't be nullified, can I file a non verified answer?
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.

Hi,

Thank you for your question. I will research the answer to your questions and get back to you shortly.

-ZDN

Expert:  TexLaw replied 1 year ago.

Thank you for your patience. Below, please find the answers to your questions:



1) does this type of complaint need to be verified? if not, which ones do?

This type of complaint does not necessarily need to be verified. A list of the types of claims that must be verified are stated in various different locations through the NY Civil Practice and Law Rules. If the breach of contract claim involves the "sale and delivery of goods or performing of labor" then CPLR Section 3016(f) states that "In an action involving the sale and delivery of goods, or the performing of labor or services, or the furnishing of material, the plaintiff may set forth and number in his VERIFIED complaint the items of his claim and the reasonable value or agreed price of each. Thereupon the defendant by his verified answer shall indicate specifically those items he disputes and whether in respect of delivery or performance, reasonable value or agreed price."

2) if it needs to be verified, and the end page has a signature but its not
notarized, can i t be nullified?


CPLR Sec. 3020 (a) states that a verification is a "statement under oath". If the Plaintiff failed to have the verification notarized, then the statement was not made under oath. Thus, CPLR Sec. 3022 states that it is unverified and may be treated as a nullity. However, you must notify the Plaintiff that you intend to treat it as a
nullity and move to dismiss the claim unless within a reasonable time the lack
of verification is corrected.


3) if it can't be nullified, can I file a non verified answer?


The fact that it is not properly verified does not necessarily mean that you need to
file an unverified answer. It would be wise to verify the answer and the to file a Motion to Dismiss should the Plaintiff not properly verify the complaint after you have provided him notice.

Please let me know if you have further questions regarding this matter. Please also remember to rate my answer positively!

Thanks and Good Luck,

ZDN

Customer: replied 1 year ago.

Thank you so much for the info so far.


 


So if I need to notify the plaintiff that I intend to treat it as a nullity, and intend to move to dismiss, assumably since they went through the trouble of having it signed/verified, is it reasonable to think that they would correct the verification in time, and thus this basically adds 'busy work'?


 


What is considered 'reasonable time' to correct the verification?

Does the answer need to be provided with the motion to dismiss, or can I file the motion, wait and then upon result, file the answer? will the time span I can have to prepare the answer start from then?

Expert:  TexLaw replied 1 year ago.

Yes, it is reasonable to suspect that the verification issue will be corrected by the opposing party. A reasonable time would be 10 days. You do need to file the answer in a timely manner and you cannot wait for the result of your motion to dismiss before filing your answer.

Customer: replied 1 year ago.

Thank you. One last question, you said that it would be wise to verify the answer while filing motion to dismiss. Why shouldn't I treat it as an unverified complaint and file an unverified general denial?

Expert:  TexLaw replied 1 year ago.

You can file the general denial if you are running up against time constraints. But after the Plaintiff remedies the verification, you are going to have to file a verified answer. The best practice would be to go ahead and verify the answer.

-ZDN

TexLaw, Attorney
Category: Legal
Satisfied Customers: 4221
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 9 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

After reading some more into this, if I plan on motioning to dismiss based on other factors (such as lack of personal jurisdiction, failure to state claim, lack of capacity), would it not be against my best interests to file a motion to dismiss for improper verification, _and_ answer (verified or not), wouldn't answering enjoin me to the jurisdiction of the court? so in effect the best course of action would be to motion to dismiss (on the above+ nullity), wait for the results, and then answer?

Expert:  TexLaw replied 1 year ago.
If you file any motion other than a motion to dismiss for lack of jurisdiction, you will be waiving your jurisdiction claim because you are asking the court to make a substantive ruling on the case. If you want to contest jurisdiction, your motion to dismiss must be limited to that issue only.
Customer: replied 1 year ago.

So procedurally, I could not do a motion to change venue due to forum non conveniens, at the same time as a motion to dismiss due to lack of personal jurisdiction, failure to state claim and lack of capacity (these were the ones my attorney were thinking to put together).

Expert:  TexLaw replied 1 year ago.
I apologize for the confusion. I've rechecked the rules and discovered I was incorrect in my prior statement. New York used to follow the general rule, as stated below:

A respondent who intends to appear specially in a proceeding must rely solely upon his jurisdictional objection. He cannot protest against the court's jurisdiction and at the same time defend the proceeding on its merits, and when he adopts such inconsistent positions at the same time, he is deemed to have waived his jurisdictional objection.

In re Estate of Feinberg, 185 Misc. 862 (N.Y. Sur. Ct. 1945)


However, the legislature changed the rule in the 80's to allow a Motion to Dismiss to include all of the portions you are speaking about, including challenge to forum and for lack of standing and failure to state a claim, etc. So your motion may go forward just as you stated.

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TexLaw
TexLaw
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4221 Satisfied Customers
Lead trial/International commercial attorney licensed 11 yrs