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ALTHOUGH THE DEFENDANT’S ATTORNEY AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE ATTACHED DOCUMENTS, THE DOCUMENTS SHOULD NOT HAVE BEEN DEEMED INADMISSIBLE BECAUSE THE PLAINTIFF DID NOT OBJECT TO THEM AND RELIED ON THEM IN OPPOSITION TO DEFENDANT’S MOTION (FIRST DEPT).

The First Department, reversing Supreme Court in this breach of contract action, determined that, although the defendant’s attorney-affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because plaintiff never objected to the admissibility of the documents and relied on those documents in opposing defendant’s motion:

Supreme Court improvidently concluded that defendant’s documentary evidence was not admissible for purposes of its motion. An attorney’s affirmation “‘may properly serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, like documentary evidence,’ so long as the [affirmation] ‘constitute[s] a proper foundation for the admission of the records'” … . The court was correct that defendant’s attorney, in her affirmation, did not lay a foundation for the admission of the records, such as her personal knowledge or her certification of the documents as true and complete copies of the originals. However, plaintiff never objected to the admissibility of any of the documents annexed to the attorney’s affirmation … and relied on the same documents in opposition to defendant’s motion … . AWL Indus., Inc. v New York City Hous. Auth., 2025 NY Slip Op 02402, First Dept 4-24-25

Practice Point: An attorney affidavit can be used as a vehicle for the admission of documentary evidence if the affidavit lays a proper foundation.

Practice Point: Here, although the defendant’s attorney affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because the plaintiff did not object to them and relied on them in opposition to the defendant’s motion.

 

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