Commercial Division Blog

Posted: February 1, 2016 / Categories Commercial, Summary Judgment

Affidavit Contradicting Prior Testimony Insufficient to Create a Question of Fact

On January 7, 2016, Justice Ramos of the New York County Commercial Division issued a decision in Law Offices of Zachary R. Greenhill, P.C. v. Liberty Insurance Underwriters, Inc., 2016 NY Slip Op. 30078(U), holding that an affidavit contradicting prior testimony was insufficient to create a question of fact precluding summary judgment in favor of the defendant, explaining:

[The plaintiff] asserts, contrary to his admissions in [an earlier action], that he and his wife did not own more than 10 percent of the issued and outstanding shares of Dwight China at the time of the claim. [The plaintiff] is attempting to feign an issue of fact regarding the [his] equity interest in Dwight China by contradicting prior admissions in [an earlier action]. These prior admissions, proffered through affidavit testimony, constitute findings of fact. [The plaintiff's] own admissions in the [earlier action], and not his most recent affidavits, are undisputed facts for purposes of this § 3212 motion.

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