Collins v. AA Truck Renting Corp.

209 A.D.2d 363, 618 N.Y.S.2d 801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1994
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about April 5, 1993, which granted defendant respondent’s motion to vacate his default in appearing, unanimously affirmed, without costs.

We reject plaintiffs’ contention that the two written statements defendant-respondent submitted to show a reasonable excuse for his default and a meritorious defense do not qualify as oaths and therefore should not have been considered. There is no specific form of oath required in this State (see, General Construction Law § 36), other than that it be "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his [sic] religious or ethical beliefs” (CPLR 2309 [b]). While defendant does not say in either statement that he had been sworn, he does say that he has read the statements, and they are "true, factual and voluntarily given”. In addition, both statements contain the jurat and stamp of a notary public, who, in the absence of a showing to the contrary, is presumed to have acted within his or her jurisdiction and carried out his or her duties as required by law (Matter of Cubisino v Cohen, 47 NYS2d 952, 954, affd 267 App Div 591; see also, Matter of Weinbaum, 43 Misc 2d 991, 995, appeal dismissed 24 AD2d 632, lv dismissed 16 NY2d 1078).

We have considered plaintiffs’ other arguments and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Kupferman and Asch, JJ.