Summary Judgment Denied; Affidavit that Contradicts a Contemporaneous Document is Not a Sham Affidavit

On January 2, 2018, the First Department issued a decision in Kärst v. W.P. Carey Inc., 2018 NY Slip Op. 00003, holding that an affidavit that contradicted documentary evidence was not a sham affidavit, explaining:

Ultimately, the parties dispute the purpose of the payments made between December 2013 and September 2014 and whether defendant did in fact seize plaintiff's interest units, which, in turn, affects the date from which interest should be calculated. Thus, because there are issues of fact surrounding the one million dollars worth of payments, plaintiff's motion for summary judgment was properly denied.

Moreover, and contrary to plaintiff's argument, this is not a case where an affidavit contradicts prior deposition testimony, or a sworn bill of particulars, thereby feigning an issue of fact; it merely contradicts an email.

(Internal quotations and citations omitted).

Cases in the Commercial Division of the New York courts usually involve a motion to dismiss at the outset and then a motion for summary judgment at the close of discovery, so such motions are a big part of our practice. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about seeking or opposing a motion for pre-trial dismissal of a commercial lawsuit.