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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: January 18, 2021

Verified Complaint Has Same Effect as an Affidavit

On December 24, 2020, Justice Sherwood of the New York County Commercial Division issued a decision in Solomon Capital, LLC v. Lion Biotechnologies, Inc., 2020 NY Slip Op. 34359(U), holding that a verified complaint has the same effect as an affidavit, explaining:

Here, plaintiffs have successfully argued that leave for reargument must be granted. The reason for plaintiffs’ success comes down to a detail overlooked by the court in its original decision; plaintiff’s provided a verified complaint as an exhibit in opposition of motion sequence 006 which courts and the CPLR recognize as a substitute for a sufficient affidavit of merits. In its July 2, 2020 Decision and Order, this court relied on the decision in Public Serv. Mut. Ins. Co. v Zucker which held that failure to offer a proper affidavit of merit on a CPLR 3216 motion may deprive the court of discretion to overlook instances or law office failure which contributed to the delay. Defendant further notes, correctly, that the court maintained this dismissal despite counsel’s affirmation incorporating the complaint by reference.

However, the key distinction here lies in the fact that plaintiffs’ complaint in Zucker was not verified, whereas the complaint here was verified by plaintiffs. This distinction, though not argued, was overlooked by the court in its prior decision. Consequently, plaintiffs’ motion for reargument is GRANTED.

(Internal quotations and citations omitted).

If you are served with a complaint and fail timely to answer, or if you answer and do not appear at schedule court appearances, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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