Pemberton v. Montoya, 2023 N.Y. Slip Op. 02674, 2023 WL 3486551 (2d Dept May 17, 2023)
In a highly regular procedural development, the defendant in a vehicular accident failed to timely answer, and the plaintiff moved for a default. In response, the defendant interposed an answer verified only by his attorney. At the same time, the plaintiff’s complaint, too, was only attorney-verified.
The court ruled that an attorney verification, as an individual without personal knowledge, “is insufficient to establish its merits.” (Internal quotations omitted.) The court similarly found that since the plaintiff did not verify the complaint, he was not permitted to rely on the allegations within to supply the necessary proof, entitling the plaintiff to a default.
The appellate court essentially took counsel for both parties to task for pursuing applications without sufficiently verified proof. While barebones pleadings and attorney verifications are commonplace for pleadings done in the normal course, applications for and oppositions to default or motions to dismiss must contain sworn statements or facts in admissible form—attorney-verified pleadings are deemed insufficient as a matter of law.
