An affidavit really is not an affidavit

Proper documentation is crucial in New York litigation, particularly when submitting affidavits to oppose summary judgment motions. Even seemingly minor technical defects can undermine an otherwise strong legal position if not handled correctly. The case of New Millennium Psychological Services demonstrates how fundamental requirements for valid affidavits must be met, and more importantly, how the timing of objections to defective affidavits can determine whether such defects can be challenged at all.

This decision provides valuable guidance on two distinct types of affidavit defects: missing captions and inadequate attestation clauses. Each carries different procedural requirements for raising objections, and understanding these distinctions is essential for effective litigation strategy.

Jason Tenenbaum’s Analysis:

New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 2011 NY Slip Op 21240 (App. Term 2d Dept. 2011)

“Plaintiff argues that the “affidavit” of its psychologist, submitted in opposition to defendant’s motion for summary judgment, was sufficient to raise a triable issue of fact. However, the “affidavit,” which contained a notary public’s stamp and signature, bore no caption and contained no attestation that the psychologist was duly sworn or that he had appeared before the notary public”

Well, the caption defect has to be rejected within two (2) days of receipt of the document. The no attestation defect has to be objected to in the answering or reply papers, where appropriate. Failure to properly object leads to the waiver of the objection.

Key Takeaway

This ruling establishes clear timing requirements for challenging defective affidavits. Caption defects must be objected to within two days of receiving the document, while attestation defects can be raised in responsive papers. Missing these deadlines results in waiving the right to challenge the defects, even when second chances to correct papers might otherwise be available.