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Where Attorney Is a Party to a Lawsuit, Attorney’s Submission of an Affirmation as Opposed to an Affidavit in Opposition to Motion to Dismiss Is Not a Sufficient Ground for Dismissal of the Complaint

The Second Department determined a complaint could not be dismissed on the ground that an attorney’s unnotarized affirmation was submitted in opposition to the motion, rather than an affidavit:

When an attorney is a party to an action, and affidavits are required to support or oppose a request for relief, that attorney may not rely upon an unnotarized affirmation in lieu of an affidavit, as the facts alleged in that affirmation would not be in admissible form (see CPLR 2106…). However, contrary to the Supreme Court’s determination, [plaintiff’s] submission of an unnotarized affirmation in lieu of an affidavit in opposition to the … defendants’ motion to dismiss the complaint insofar as asserted against them did not warrant the granting of that motion. “CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal” … . Accordingly, [defendant’s] failure to submit an affidavit was not fatal to his opposition, and the Supreme Court should not have granted the … defendants’ motion to dismiss the complaint insofar as asserted against them on that basis. Law Offs of Frishberg v Toman, 2013 NY Slip Op 02224, 2011-04956, 2011-07881, Index No 12965/10, 2nd Dept 4-3-13

 

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