O'Connor v. Fedak

OPINION OF THE COURT Eugene H. Hanofee, J. The respondent in the above matter has moved to dismiss the paternity petition filed by the Commissioner of Social Services upon the basis that it is improperly verified. The petition is verified by the commissioner upon information and belief as to all allegations, except as to the commissioner’s status in the matter. The respondent cites Beaudoin v Harris (88 Misc 2d 1054) as authority. The petition in that case was almost identical to the one in this matter. The court in that case held that since section 523 of the Family Court Act, which requires a verified petition, is silent as to petitions on "information and belief’, a petition filed by the commissioner upon information and belief [404] without stating the grounds for such belief should be dismissed. The court in the present case must respectfully disagree. Section 165 of the Family Court Act provides that the CPLR shall apply to any Family Court proceeding where the procedure is not prescribed. Section 523 of the Family Court Act does not prescribe the form and content of the verification; therefore, the CPLR should determine whether or not the verification is sufficient. CPLR 3021 provides that the verification must be to the effect that the pleading is true to the deponent’s knowledge except as to those matters alleged on information and belief, and that as to those matters he believes them to be true. If the verification is made by a nonparty, it must set forth the grounds of his belief as to all matters not stated on his knowledge and the reason why it is not made by the party. The practice commentary following McKinney’s Consolidated Laws CPLR 3021 (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3021:1, p 391) states "[i]f the verification is made by the party, it need not elaborate the grounds for belief of those items not averred on knowledge. When made by other than the party, those grounds must be stated.” The commissioner is clearly a party and the verification therefore is sufficient and need not set forth the grounds for belief. The motion is accordingly denied.