The “Jackson Affidavit” in New York Practice

The so-called “Jackson Affidavit” – named after a First Department case, Jackson v. City of New York, 185 A.D.2d 768, 586 N.Y.S.2d 952 (1st Dept. 1992) – is frequently used in New York state court litigation to, in sum, confirm that documents requested as part of discovery have been searched for and not found.

Jackson itself was a personal injury case, arising from injuries allegedly sustained by plaintiff when a City-owned stairway gave way. Plaintiff sought discovery relating to the maintenance of the building where the accident occurred, including whether there was any notice to the City of the defective condition of the stairway prior to the plaintiff’s injury. Jackson, 185 A.D.2d at 768.

The court then proceeded to explain why, in its view, the City should be sanctioned for its failure to respond to discovery:

Under CPLR 3126, sanctions may be imposed for deliberate, dilatory or wilful failure to comply with discovery (Commissioners of State Ins. Fund v Valenzano, 175 AD2d 687). Here, after years of delay, the affidavit presented by the City made no showing as to where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found. In short, the affidavit provided the court with no basis to find that the search had been a thorough one or that it had been conducted in a good faith effort to provide these necessary records to plaintiff. Under such circumstances, the City’s failure to locate any maintenance records should not inure to its own benefit, particularly in light of the behavior of the City from the outset of this litigation in failing to cooperate with discovery and blatantly ignoring court orders. For this reason, we find that the issue of notice to the City of the alleged defective condition that caused the plaintiff’s injuries should be resolved in favor of the plaintiff and defendant is precluded from raising any issue with respect thereto.

In Trade Expo Inc. v Sterling Bancorp, No. 160214/13, 9106, 9107N, 2019 N.Y. Slip Op. 03152, 2019 WL 1798040 (N.Y.A.D. 1 Dept., Apr. 25, 2019), the court held:

Defendants’ [Jackson] affidavits … adequately set forth their good faith efforts to comply with discovery with averments, inter alia, that: (i) defendants’ personnel had conducted a thorough search for requested documents in all areas where said documents and/or information were likely to be found; (ii) no documents were knowingly disposed of by defendants so as to undermine plaintiffs’ right to full discovery; and (iii) defendants did have some policies in place for keeping and maintaining files, but evidently the policies were not universal or particularly detailed, and somewhat left to the discretion of the file creator to determine what records were most pertinent for business purposes.

While there is no set language mandated for the so-called “Jackson Affidavit”, and its terms may vary from case to case, such an affidavit should include, at the very least, an explanation of where and how documents of the type sought are maintained, who maintains them, what efforts were made to locate them, and the results of the search.

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