2d Dept.: Affirmation of Good Faith May Be Contained in Primary Affirmation

Motion practice in New York litigation is governed by a variety of overlapping provisions, including those set forth in the New York Civil Practice Law and Rules (CPLR), “Uniform Rules”, local/judges’ rules, and case law.

Section 202.7 of the Uniform Civil Rules for the Supreme and County Courts, titled “Calendaring of motions; uniform notice of motion form; affirmation of good faith”, provides in pertinent part:

(a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. [Emphasis added.]

The highlighted portion of the rule, known as the “affirmation of good faith” requirement, is meant to ensure that the parties attempt to resolve their discovery dispute before enlisting the court’s assistance in doing so.

In Encalada v Riverside Retail, LLC, No. 2018-10149, 5276/15, 2019 N.Y. Slip Op. 06066, 2019 WL 3679692, at *1 (N.Y.A.D. 2 Dept., Aug. 07, 2019), a personal injury case, the court explained that:

Contrary to the plaintiff’s contention, the Supreme Court was not required to deny that branch of the defendants’ motion on the ground that the defendant failed to submit an affirmation attesting to a good faith pre-motion attempt to resolve the dispute with the plaintiff. While it may be the better practice for the movant to detail such good faith efforts in an affirmation separate from the affirmation addressing the merits of the motion, under the circumstances of this case, the requirements of 22 NYCRR 202.7(c) were satisfied by the primary affirmation of counsel submitted in support of the motion wherein counsel detailed her efforts to obtain the plaintiff’s compliance with the extant court order[.]

At the end of the day, the court ruled that plaintiff was required, under CPLR 3124, to submit to a medical examination.

But the broader take-away is that, while the court did not deny the motion because there was not separate “affirmation of good faith,” litigants should take heed to note the court’s observation that “it may be the better practice” for there to be a separate affirmation.