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First Department Panel Very Skeptical of Owner Affidavit In Lieu Of Deposition In Labor Law Case (NY)

June 23, 2023

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<p style="text-align: justify;">The Appellate Division, First Department, issued yet another blow to Labor Law defendants. But this blow was of a different kind. In <a href=""><em>Rivera</em></a> <em>v. Matiz Architecture, 3 RSD LL</em>C, et al, No. 2022-04331 (N.Y. App. Div. June 20, 2023), defendant 3 RSD, owned by a non-party LLC with a sole managing member, moved for summary judgment pursuant to the homeowner exception to Labor Law §§ 240(1) and 241(6). Before being deposed, 3 RSD submitted an affidavit from the owner affirming that his intent was to use the property only for residential purposes once a renovation, during which plaintiff had been injured, was completed.</p>
<p style="text-align: justify;">The lower court granted the motion, but the First Department reversed, holding that 3 RSD’s motion should have been denied as premature with leave to renew upon the completion of discovery. At the May 30th oral argument available for viewing on the First Department’s website, defendant-owner’s attorney stated that, having spoken with her client, his deposition testimony would be no different from the facts sworn to in his affidavit. Multiple Justices appeared to scoff at this assertion, refusing to take defendant’s affidavit at face value but while appearing to accept plaintiff’s argument that the affiant had an apparent business of flipping properties.</p>
<p style="text-align: justify;">During the oral argument, multiple Justices asked questions that reflected a heightened skepticism of attorney-drafted affidavits. One Justice stated that he found it “very interesting” that the affiant “says he intends to do this, he intends to do that…” yet stopped short of asserting what he was going to do, which left this Justice with the impression that the owner had yet to make up his mind about his plans for the property. Another Justice found the wording of the affidavit “very peculiar.” Yet another asked whether a good lawyer could ask questions during a deposition that might reveal whether there’s any merit or value behind this “alleged intent” to move in.</p>
<p style="text-align: justify;">Although the decision allows for renewal of a summary judgment motion upon completion of discovery, given the tenor of the Court’s questioning that appeared to challenge the credibility of the affiant, it is unclear what proof such a defendant-owner would have to offer during discovery that might lead to a different outcome, particularly when the opinion itself cited to First Department precedent that held that an owner’s credibility should be resolved on cross-examination before a factfinder.</p>
<p style="text-align: justify;">Thanks to Abed Bhuyan for his contribution to this post. Please contact<a href=""> Abed</a> with any questions.</p>


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