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KJL LAW
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I will be making a motion for summary judgement in NY

Customer Question

I will be making a motion for summary judgement in NY federal court. I know summary judgement motions should be based on undisputed facts - can I include an affidavit in my motion or would my affidavit be considered under dispute?
Submitted: 9 months ago.
Category: Bankruptcy Law
Expert:  Marc replied 9 months ago.

Hello. My name is Marc. I'm a NY-licensed attorney, and I will be happy to answer your question.

Yes - you should state the facts in an affidavit, which will be attached to your motion. But it likely won't be enough. It's up to your adversary to determine whether the facts you allege are in dispute. Your adversary will likely do this in his opposition to your motion, which will include your adversary's attorney's Affirmation stating his version of the facts. As such, without any further evidence on your part, there will be an issue of fact and your motion will be denied.

Therefore, your Affidavit must be supported with exhibits that prove your claims. If your Affidavit states, for instance, that you paid $5000 under a contract with your adversary to purchase 25 widgets, you must attach to your Affidavit the contract and related documents. If there have been depositions, you must attach the transcripts if you're citing the testimony therein. If your evidence is based on other witnesses, you must include Affidavits from those witnesses.

So yes - include an Affidavit, in which you will state your facts. Avoid the temptation to make arguments or objective statements in your Affidavit. Those go in your memo of law only. Just state the relevant facts that support your arguments and attach evidence that supports those facts.

I wish you luck with your motion! And I hope my answer helps you to better understand your issues and options. If so, please be sure to rate my answer, since that is the only way I can receive credit.

Kind regards,

Marc

Customer: replied 9 months ago.
Should I create a seperate document for the memo of law or can I submit a "motion for summary judgement and memo of law" in the same document?
Expert:  Marc replied 9 months ago.

I'm so sorry! I just realized you are asking about federal court.

In federal court, yes - your facts and arguments should be in the same document. Therefore, there is no need for an Affidavit from you. Rather, you will state your facts in a section entitled Statement of Undisputed Facts. But keep in mind everything I mentioned above - that is, for each fact you must cite to some exhibit (transcript, witness affidavit, contract, photo, etc...).

See the following link, which provides excellent instructions for pro se litigants specifically for filing summary judgment motions in federal court. http://www.publiccounsel.org/tools/assets/files/0450.pdf

I'm sorry I missed this key fact before. I do not expect you to rate my answer. Again - good luck.

Expert:  KJL LAW replied 9 months ago.

Good morning. I am attorney expert and I will follow up. My collogue is correct the motion should be in the same document and will be contained in section rather than separate affidavits as with NYS Courts. New York federal courts have put out a guide to assist pro-se litigants such as yourself. http://www.nysd.uscourts.gov/file/forms/motions-guide-for-pro-se-litigants . The other link provided is also helpful when drafting your motion. There are numerous sample motions on the internet for the format and style for you to copy. I hope this helps.

It was a pleasure assisting you today, and I would appreciate if you would rate my service, so I will receive credit and payment for my work. After you rate the question you can ask follow up questions, and you will not be charged any additional money for the follow-up questions.

Expert:  KJL LAW replied 9 months ago.

If you have any questions just ask.

Expert:  KJL LAW replied 9 months ago.

If you have any other questions just ask.

Expert:  KJL LAW replied 9 months ago.
If you have any other questions just ask.