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March 28, 2023

Affidavits Lacking Personal Knowledge and Attaching Uncertified Records Have No Probative Value

A recent decision from the Appellate Division, First Department highlighted the foundational requirement that affidavits and accompanying documents submitted in support of a summary judgment motion must be in admissible form to be considered.  

In Muslar v. Hall,the plaintiff alleged personal injuries arising out of a motor vehicle accident with a semi. In addition to suing the driver of the truck, the plaintiff commenced his action against the owner of the truck (Global), the lessor of the truck (GDM), and the lessee and driver’s employer (Asplundh Construction, LLC). 

Global and GDM, as owner and lessor, moved for summary judgment based on the claimed applicability of the Graves Amendment (codified at 49 USC § 30106), which bars actions against owners or lessors of motor vehicles based solely on their vicarious liability. In order for the Graves Amendment to apply, these owners or lessors must demonstrate: (1) they are in the business of leasing motor vehicles, (2) they leased the vehicle at issue, (3) the subject accident occurred during the lease period, and (4) it is undisputed that negligent maintenance did not contribute to the subject accident.

In support of their motion, Global and GDM submitted affidavits of their controller and president, respectively, stating they are engaged in the business of leasing motor vehicles, they leased the subject truck to lessee Asplundh Construction, and the defendant-driver was operating the subject truck at the time the rental agreement was in effect. 

The trial court granted the request for summary judgment on this evidence, but the First Department ultimately disagreed. In reversing the trial court’s ruling, the First Department found the submitted affidavits lacked probative value, as they failed to set forth the basis for the respective representatives’ knowledge of the facts stated therein either by demonstrating personal knowledge or through submission of admissible business records. 

While purported lease documents were attached to these affidavits, those documents were not certified, the affidavits did not lay a sufficient foundation for the documents’ admissibility, and the documents nonetheless appeared incomplete.2
The First Department’s decision restates a fundamental principle that requests for summary judgment must be supported by evidence in admissible form, including affidavits that must set forth the basis of an affiant’s knowledge. These threshold evidentiary issues are key to pursuing relief as a movant and can likewise be key in opposing a request for relief as a nonmovant.

1Muslar v. Hall, 2023 N.Y. App. Div. LEXIS 1050 (1st Dept. Feb. 28, 2023).

2The court further noted the affidavits failed to allege that negligent maintenance did not contribute to the subject accident, a necessary element for the applicability of the Grave Amendment. 

If you have questions regarding the content of this alert, please contact Jessica Tariq, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.  


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