Sirico v F.G.G. Prods., Inc., 2010 NY Slip Op 01733 (App. Div., 1st, 2010)
In May 2008, plaintiffs moved for renewal and reargument,[FN3] contending that the allegations in
Gottehrer's affidavit were conclusory and unsupported by any proof, and
noting that defendant had moved for summary judgment before plaintiffs
had the opportunity to conduct discovery. For those reasons, plaintiffs
argued, they believed their factual allegations in the complaint and
bill of particulars should have withstood the motion for summary
In connection with their motion to renew, plaintiffs submitted
"affidavits" witnessed by out-of-state notaries that were questionable
as to proper form. Davidson states that she understood from
representations by FGG's owners, including Gottehrer, that FGG would pay
her the same royalties as the Allbuts for recording as a member of the
Angels. According to Davidson, FGG had made one "negligible" royalty
payment to each of the three women. Davidson adds that she never signed
any agreement when joining the group and never signed any waiver or
release of any of her rights, and claims that FGG used her voice, name
and image to sell records. Davidson denied that the Angels ever refused
to record for FGG.
In a similar affidavit, Sirico states that all three women
believed that as a member of the Angels, Davidson was entitled to FGG's
royalties, and in fact FGG gave each of the women one royalty check. She
denies having breached her contract by refusing to perform for FGG, and
states that she recorded for another label only after the exclusivity
period of the contract had expired.
Defendant opposed plaintiffs' motion and cross-moved for
sanctions, contending that renewal should be denied because plaintiffs'
affidavits did not contain any newly discovered evidence that could not
have been submitted previously. Defendant also claimed that the
affidavits were improper because the out-of-state notaries'
acknowledgments did not state that plaintiffs' statements were sworn to
in their presence.
The court held that the motion for reargument was untimely, and
plaintiffs' affidavits in support of the renewal were deficient because
they were unsworn, but in any event were insufficient to defeat
defendant's prima facie showing. It noted that Davidson did not provide
any details about the terms of her alleged contract with FGG, and held
that plaintiffs had not justified their failure to submit admissible
evidence to oppose the summary judgment motion, concluding that
On this record – riddled with procedural mistakes and
deficiencies – there is no reason for the Court to exercise its
discretion and overlook plaintiffs' repeated oversights.
is, of course, no appeal from denial of reargument. However, the denial
of renewal is reversed. "Although renewal motions generally should be
based on newly discovered facts that could not be offered on the prior
motion (see CPLR 2221[e]), courts have discretion to relax this
requirement and to grant such a motion in the interest of justice" (Mejia
v Nanni, 307 AD2d 870, 871 ). While plaintiffs should have
submitted admissible evidence to oppose the summary judgment motion,
their failure is excusable. Defendant moved for summary judgment before
plaintiffs had the opportunity to conduct discovery, and plaintiffs'
counsel reasonably believed that defendant had failed to make a prima
facie showing of entitlement to judgment.
Contrary to the renewal court's ruling, plaintiffs' affidavits are
admissible. Each contains the affiant's statement that she was duly
sworn and believes the affidavit's contents to be true and correct, and
the notary's statement that the affiant personally appeared, proved her
identity, and "did further acknowledge that she executed the foregoing
for the purposes therein contained" (see Feldman v Feldman, 280
AD2d 276, 277 ; Collins v AA Truck Renting Corp., 209 AD2d
363  [notary "is presumed to have acted within his or her
jurisdiction and carried out his or her duties as required by law"]).
The bold is mine.