Giambra v. Commissioner of Motor Vehicles

New York Court of Appeals

Giambra v. Commissioner of Motor Vehicles

386 N.E.2d 251, 46 N.Y.2d 743, 413 N.Y.S.2d 643, 1978 N.Y. LEXIS 2445

CourtNew York Court of Appeals

DecidedDecember 6, 1978

StatusPublished

Cited by24 cases

This text of 386 N.E.2d 251 (Giambra v. Commissioner of Motor Vehicles) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Giambra v. Commissioner of Motor Vehicles, 386 N.E.2d 251, 46 N.Y.2d 743, 413 N.Y.S.2d 643, 1978 N.Y. LEXIS 2445 (N.Y. 1978).

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Opinion

OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. Having failed to utilize the appropriate mechanism for administrative review of the decision to revoke their operator’s licenses and motor vehicle registration, petitioners are precluded from challenging that determination by means of this article 78 proceeding (Vehicle and Traffic Law, § 263; see CPLR 7801, subd 1).

A few words of clarification are in order, however, as to the problem perceived to exist by the Appellate Division with respect to the verification of the petition commencing this proceeding by petitioners’ attorney rather than by petitioners themselves. Although not strictly necessary for the disposition of this appeal, it appears appropriate to alleviate some of the apparent confusion concerning this matter. Verification of a pleading by an attorney rather than a party is not normally permissible, and is usually not an advisable practice. Nonetheless, there are certain situations in which verification by someone other than a party is explicitly authorized by statute (CPLR 3020, subd [d]). One such instance is where the party "is not in the county where the attorney has his office” (CPLR 3020, subd [d], par 3). Since that is the situation which exists in the present proceeding, the attorney was in fact authorized to verify the petition.

We would note, however, that in such instances there must be careful compliance with the mandates of CPLR 3021. Thus, in the present instance, although the attorney properly explained in the petition the reasons why he rather than petitioners was verifying it, he failed to "set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge” (CPLR 3021). Any objection to this defect, however, was waived by respondent’s apparent failure to give notice with due diligence of respondent’s intention to treat the pleading as a nullity on the basis of that defect (see CPLR 3022).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in a memorandum.

[746]*746Order affirmed.

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OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. Having failed to utilize the appropriate mechanism for administrative review of the decision to revoke their operator’s licenses and motor vehicle registration, petitioners are precluded from challenging that determination by means of this article 78 proceeding (Vehicle and Traffic Law, § 263; see CPLR 7801, subd 1).

A few words of clarification are in order, however, as to the problem perceived to exist by the Appellate Division with respect to the verification of the petition commencing this proceeding by petitioners’ attorney rather than by petitioners themselves. Although not strictly necessary for the disposition of this appeal, it appears appropriate to alleviate some of the apparent confusion concerning this matter. Verification of a pleading by an attorney rather than a party is not normally permissible, and is usually not an advisable practice. Nonetheless, there are certain situations in which verification by someone other than a party is explicitly authorized by statute (CPLR 3020, subd [d]). One such instance is where the party "is not in the county where the attorney has his office” (CPLR 3020, subd [d], par 3). Since that is the situation which exists in the present proceeding, the attorney was in fact authorized to verify the petition.

We would note, however, that in such instances there must be careful compliance with the mandates of CPLR 3021. Thus, in the present instance, although the attorney properly explained in the petition the reasons why he rather than petitioners was verifying it, he failed to "set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge” (CPLR 3021). Any objection to this defect, however, was waived by respondent’s apparent failure to give notice with due diligence of respondent’s intention to treat the pleading as a nullity on the basis of that defect (see CPLR 3022).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in a memorandum.

[746]*746Order affirmed.

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Bluebook (online)

386 N.E.2d 251, 46 N.Y.2d 743, 413 N.Y.S.2d 643, 1978 N.Y. LEXIS 2445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giambra-v-commissioner-of-motor-vehicles-ny-1978.

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