A Pox On Both Houses in a Case Permeated Wtih Fraud
Ponzi schemes probably make bad law, in as much as everyone points the finger at everyone, and claims of fraud swirl through and through. So it goes in Kimmel v Schon 2013 NY Slip Op 32318(U) September 26, 2013 Sup Ct, Kings County Docket Number: 015633/2012 Judge: Bernard J. Graham.
A real estate purchase, a loan , ponzi schemes, claims of legal malpractice? What is more interesting is the appalling lack of formality in the summary judgment practice. Plaintiff, who is an attorney, files his own affirmation, which is rejected by the court. The motion for summary judgment lacks the admissible evidence of a person with actual knowledge, which is its own reason to deny the motion.
"The instant motion, by which plaintiff seeks dismissal of the counterclaims and summary judgment appointing a referee to compute, is supported solely by the plaintiffs attorney's affirmation. Also provided as exhibits in support of the instant motion are (1) an affirmation of Miriam W. Hermann (Hermann), and (2) an affirmation of Kimmel. In support of plaintiffs argument disputing the Schons' assertion that Tepfer & Tepfer did not represent him at the loan closing, Hermann states that, as an attorney associated with the law firm of Ferro Labella & Zucker LLC, she represented the lender in the subject transaction, drafted the papers and attended the closing at which the Schons were represented by Tepfer & Tepfer, P.C. In addition, she states that at the closing, the borrowers signed a closing statement, and were provided with an opinion letter by Tepfer & Tepfer. In further support, stating that he is an attorney duly admitted to practice in the State of New York, Kimmel provides, as plaintiff, his own attorney's affirmation. He states that as lender and administrator of the subject loan, he received all payments made thereunder, and he (1) never agreed to extinguish the note, (2) never agreed to accept a new note to replace the one that is at issue here, and (3) there was never a new obligation that replaced the Note, and no new contract was discussed or drafted with respect thereto. "
"Plaintiff s motion for summary judgment must be denied. It is well settled that on a motion for summary judgment, an affidavit of counsel who demonstrates no knowledge of the underlying facts is without probative value (see Zuckerman, 49 NY2d at 563, citing Columbia Ribbon & Carbon MIg. CO. v A-J-A Corp., 42 NY2d 496,500 ; Israelson v Rubin, 20 AD2d 668 , affd 14 NY2d 887 ; Lamberta v Long Is. R. R., 51 AD2d 730 ). Here, plaintiffs counsel's affirmation is silent regarding his basis of knowledge of the underlying facts. Moreover, the affirmation of plaintiff, an attorney, is not admissible in this instance. Under the language of CPLR 2106,2 the use of an unsworn affirmation bearing the individuals signature alone, in lieu of an affidavit, is prohibited where the signatory, even if otherwise authorized by the statute, is a party to the action (see Slavenburg, Corp. v Opus Apparel, Inc, 53 NY2d 799, 801[FN] ; Schutzer v Suss- Kolyer, 57 AD2d 653 ; Fitzgerald v Willes, 83 Misc 2d 853 [App Tenn 1975]). Consequently, plaintiff has failed to meet his initial burden of making a prima facie showing of entitlement to judgment as a matter of law, requiring denial of his motion and regardless of the sufficiency of the opposing papers (see Vega v Restani Const. Corp., 18 NY3d 499 ). In any event, were it necessary to do so, the court would find that defendants have met their burden of raising an issue of fact in opposition to plaintiff s motion through their particularized showing, in admissible form, that the underlying transaction was permeated with, and arose out of, fraudulent conduct."