In opposition to the instant motion, plaintiff submits an un-notarized affidavit, which is inadmissible and cannot be considered in opposition to the instant motion.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form.
Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Similarly, unsworn accident reports are inadmissible and cannot be considered by the court.
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. The burden, however, always remains where it began, with the movant on the issue. Hence, “if the evidence on the issue is evenly balanced, the party that bears the burden must loose.”
It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. On this issue the Court of Appeals has stated [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form.
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. Supreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the injury complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial..
Accordingly, the Court’s function when determining a motion for summary judgment is issue finding and not issue determination. Lastly, because summary judgment is such a drastic bite remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. When the existence of an issue of fact is even debatable, summary judgment should be denied. It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment.
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment.