Matter of New York Rezulin Prods. Liab. Litig. v Pfizer, Inc., 2009 NY Slip Op 07496 (1st Dept. 2009)
“There is no basis to disturb the court’s determination in favor of Duffy ( see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ). At the hearing, Girardi called no witnesses on its own behalf to contradict the testimony of Duffy’s witnesses as to the existence of an oral one-third fee arrangement between the two firms. The court properly declined to consider affidavits by a witness who was not available for cross-examination in court ( see Seinfeld v. Robinson, 300 A.D.2d 208, 755 N.Y.S.2d 69 [2002] ).
I did not post this case not for its precedential value. It is obvious. I posted this case because if you recall at the CLE in Brooklyn that we gave, I stated that the reason you as a practitioner should make summary judgment motions is because you cannot cross-examine the underlying affidavits that support the motion. However, should you be forced to go to trial, you will not be able to rely on an affidavit because it is not subject to cross-examination. See, id.
