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Current Developments in the Commercial Divisions of the
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Posted: September 5, 2014

Attorney Affidavit Admitted in Support of Motion for Summary Judgment

On August 27, 2014, Justice Bransten of the New York County Commercial Division issued a decision in ZV NY, Inc. v. Moskowitz, 2014 NY Slip Op. 51338(U), explaining the circumstances in which an attorney affidavit may be used to support a motion for summary judgment.

In ZV NY, a commercial landlord-tenant dispute, the defendant opposed the plaintiff’s motion for partial summary judgment on several grounds, including that the motion was “procedurally deficient because Plaintiff failed to submit an affidavit by a person having knowledge of the facts as required by CPLR 3212(b). Instead, Plaintiff submitted an affirmation of its attorney, along with accompanying exhibits.” (Internal quotations and elision omitted). Notwithstanding many cases providing–as a general matter–that attorney affidavits are not sufficient support for a motion for summary judgment, the court rejected the defendant’s argument, explaining:

The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form, e.g., documents, transcripts. Such an affidavit or affirmation could also be accepted with respect to admissions of a party made in the attorney’s presence. Plaintiff’s use of an attorney affirmation as the means of introducing exhibits in support of its motion is not dispositive.

(Internal citations and quotations omitted) (emphasis added).

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