On December 18, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Coast to Coast Energy, Inc. v. Gasarch, 2018 NY Slip Op. 33350(U), rejecting conclusory statements in party affidavits submitted in support of summary judgment, explaining:
[T]he Court notes that many of the Plaintiffs factual contentions are brought by affidavit. Many of the statements in both Plaintiffs and Defendant’s affidavits are utterly without supporting documentation and are conclusory. Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient.
The proponent of summary judgment must eliminate material issues of fact by producing evidentiary proof in admissible form. It is only the party opposing summary judgment who may, in the alternative, demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form.
Here, questions as to whether statements made by the parties are admissible are apparent throughout their submissions. For example, Plaintiff Spence purportedly conducted an analysis of prior monthly operations summaries. He has not otherwise proffered foundational evidence that he is an expert able to render an expert opinion on the issue, what methods he purportedly used to render an analysis. Similarly, Gasarch occasionally relies upon his own prior affidavits, without further evidentiary support, in support of his summary judgment motion. The insufficiency of these submissions either warrants a finding that a material issue of fact exists, at a minimum, or a finding in favor of the Defendant as a matter of law. The Court will, therefore, analyze the remaining arguments to determine whether material issues of fact exist.
(Internal citations omitted).
Cases in the Commercial Division of the New York courts usually involve a motion to dismiss at the outset and then a motion for summary judgment at the close of discovery, so such motions are a big part of our practice. Contact Schlam Stone & Dolan partner John Lundin at firstname.lastname@example.org if you or a client have questions about seeking or opposing a motion for pre-trial dismissal of a commercial lawsuit.
Click here to subscribe to this or another of Schlam Stone & Dolan’s blogs.