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3212(b) motion – affidavit from movant necessaryMarch 2, 2012

Maragos v Sakurai, 2012 NY Slip Op 01592 (2d Dept. 2012)

“CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney’s affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion”

There are some courts that will do anything in their power to stave off granting  summary judgment to a movant.  Just recently, a Supreme Court Justice stated that the absence of an original affidavit rendered an otherwise uncontested affidavit to be inadmissible.  The actions of the Supreme Court in this matter are not necessarily shocking.

CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney’s affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion

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