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2nd Department Cautions against Over-reliance on... 2nd Department?

March 10, 2017

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In New York, a motion for summary judgment is subject to stringent rules pertaining to support for the motion, timing, and the evidentiary burden of the parties. Pursuant to CPLR §3212 a motion must be supported by evidence in admissible form, and by someone with personal knowledge. An attorney affirmation alone will not suffice.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2017/03/Zhubrak-v.-Petro.pdf">Zhubrak v. Petro</a></em>, 2017 NY Slip Op 01593 (2d Dept. 2017), a jury trial had found that the defendant did not negligently operate his vehicle, and as such, was not liable.  The plaintiff moved to set aside the verdict, and that motion was granted.  After the case was sent back to the Supreme Court for a new trial on liability, plaintiff moved for summary judgment based on the Second Department’s decision for a new trial, attached to an attorney affirmation. Plaintiff failed to provide an affidavit from someone with personal knowledge or any other admissible evidence.
The Appellate Division found that the Supreme Court erred in granting plaintiff’s motion for summary judgment partially due to the fact that plaintiff failed to submit any evidence in admissible form. Ironically, the 2nd Department chastised the plaintiff, due to plaintiff's over-reliance on the 2nd Department's prior decision.   That decision does not, on its own, constitute admissible proof. Thanks to Dana Purcaro for her contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.
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