Being duly sworn and a personal jurisdiction problem

Ulster Sav. Bank v Fiore, 2018 NY Slip Op 06588 [2d Dept. 2018]

Contrary to Nicholas's contention, the affidavit of the plaintiff's Collections Officer, submitted by the plaintiff in support of its motion, was not improperly sworn and, therefore, was adequate to support the motion, since the affidavit expressly contained the phrase "being duly sworn" and was notarized (Citibank, NA v Abrams, 144 AD3d 1212, 1216; see Matter of Bennett, 148 AD3d 1449, 1449-1450). In opposition to the motion, the defendants failed to raise a triable issue of fact.

We also agree with the Supreme Court's determination to deny, without a hearing, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Nicholas for lack of personal jurisdiction. Nicholas waived the defense of lack of personal jurisdiction by failing to assert it in his answer or in a pre-answer motion to dismiss (see MidFirst Bank v Ajala, 146 AD3d 875, 875; cf. Hopstein v Cohen, 143 AD3d 859, 860).

The bold is mine.

Notice witness

Rizos v Galini Seafood Rest., 2011 NY Slip Op 08576 (2nd Dept., 2011)

The admissible evidence which the plaintiff submitted in opposition to the defendants' motion failed to raise a triable issue of fact as to the cause of the accident (see Dalinedesroches v Lazard, 70 AD3d at 626; Morgan v Windham Realty, LLC, 68 AD3d at 829; Teplitskaya v 3096 Owners Corp., 289 AD2d at 478). The affidavit of a nonparty witness relating to the defendants' notice of the alleged dangerous condition could not be considered in determining the motion, as the witness was not properly disclosed as a notice witness (see Muniz v New York City Hous. Auth., 38 AD3d 628; Williams v ATA Hous. Corp., 19 AD3d 406, 407).

Proving a negative

Arias v Skyline Windows, Inc., 2011 NY Slip Op 07725 (1st Dept., 2011)

Defendant failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff maintenance worker alleges that he was injured when, while pulling a trash container, he slipped on broken glass and fell, resulting in the trash container rolling over his foot. Defendant was the company that had been hired to replace and install new windows at the building where plaintiff worked. Defendant failed to demonstrate that its employees did not perform work at the location until after the day of the subject accident. Although an "affidavit[] indicating that a search of business records had demonstrated a negative is admissible" and can substantiate a summary judgment movant's initial burden (Dickson v City of New York, 43 AD3d 809 [2007]; see Piccinich v New York Stock Exch., 257 AD2d 438 [1999]), here, the affidavit of defendant's director of field operations for volume was inconsistent with his own deposition testimony and indicated a lack of "familiarity with the . . . project at issue" (Barraillier v City of New York, 12 AD3d 168, 169 [2004]).

Even were we to determine that defendant met its initial burden, plaintiff's opposition raised triable issues as to whether defendant's employees were responsible for creating the condition that caused his injuries. Plaintiff testified that he observed defendant's employees at the building in the days prior to the accident and the affidavit of plaintiff's coworker is consistent with plaintiff's testimony. Although defendant disputes the veracity of the coworker's affidavit, its truth is presumed at this procedural posture where the court's duty is to find issues rather than determine them (see Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]).