Affidavits are the most commonly used source of proof in New York motion practice. An affidavit is a statement subscribed to and sworn by a person authorized to do so, usually a notary public.
Specific requirements exist for use and contents of affidavits supporting certain types of pleadings and motions. Refer to the New York County SmartRules™ Procedural guide for the specific pleading or motion type for a discussion of any unique affidavit requirements.
NEW RULE AMENDMENTS EFFECTIVE JANUARY 1, 2024
It is a clearly established matter of case law in New York that wherever possible, an affidavit or affirmation of truth of statement should be made by a person with first hand knowledge of the matters attested to. Affidavits by those whose knowledge is indirect will be given lesser weight by the court in its discretion. Where an affidavit based on indirect or second hand knowledge is submitted it should include an explanation of why an affidavit by a person with first hand knowledge is not available.
The requirement that affidavits and affirmations of truth of statement be based on first hand knowledge is very strictly enforced in the summary judgment context. Case law is clear that an attorney's affidavit has little or no probative value as support for a summary judgment motion, except in the rare circumstance where the attorney has first hand knowledge of the facts.
In the Civil Branch and the Commercial Division, no affidavit or affirmation may exceed 7,000 words when prepared on the computer. Commercial Div. R. 17 (amended eff 10/1/18); Uniform R. 202.8-b (a) (amended eff 7/1/22).
In the Civil Branch typewritten or handwritten affidavits, affirmations, briefs, and memoranda of law in chief shall be limited to 20 pages each. Uniform R. 202.8-b (d) (amended eff 7/1/22).
In the Civil Branch and the Commercial Division, every brief, memorandum, affirmation, and affidavit prepared on a computer must include a certification describing the number of words in the document and certifying that the document complies with the word count limit. Word counts from word processing software can be used to prepare the document. Commercial Div. R. 17 (amended eff 10/1/18); Uniform R. 202.8-b (c) (amended eff 7/1/22).
New York rules of practice do not proscribe the form of affidavits. However, as a matter of custom, affidavits generally begin with a statement of the state, county and city in which the affidavit is made, followed by an opening statement that the affiant (who would be identified by name) "being duly sworn, states as follows".
Thereafter the document would set forth the statements of the affiant, which should be phrased in clear and succinct language with distinct statements set forth in separate paragraphs to the fullest extent possible.
The document should end with a signature line for the affiant and space for notarization, including the notary's signature, stamp, license number and language indicating that the document was subscribed and sworn before the notary, and the date of execution.
For more information, see New York County Supreme Court SmartRules™ procedural guide: GENERALLY APPLICABLE RULES AND FORMATTING REQUIREMENTS.
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