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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: August 1, 2014

Legal Argument to be in Memorandum of Law, Not Attorney Affirmation

On July 17, 2014, Justice Bransten of the New York County Commercial division issued a decision in Response Personnel, Inc. v. Aschenbrenner, 2014 NY Slip Op. 31948(U), reminding counsel to make legal argument in a memorandum of law, not an attorney affirmation.

In Response Personnel, the court decided a motion for summary judgment. In the decision, the court reminded counsel of the requirement to use a memorandum of law to make legal argument.

The Court notes that both Plaintiff and Defendants submitted affirmations to the Court in lieu of memoranda of law. As the attorneys for both Plaintiff and Defendants are no doubt aware, argument is to be presented in a memorandum of law. The affirmation is neither a replacement for a memorandum of law nor a place to submit additional argument. Both attorneys are directed to refrain from the submission of argumentative affirmations in the future.

(Internal quotations and citations omitted).

Notwithstanding the rules, what counsel did here is a common practice in regular court parts. However, it is not the standard of practice in the Commercial Division, as Justice Bransten points out.

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