Court Cautions Counsel Against Using Affidavits and Rule 19-a Statements to Avoid Word-Count Limits

On June 21, 2022, Justice Cohen of the New York County Commercial Division issued a decision in Durst Pyramid LLC v. Silver Cinemas Acquisition Co., 2022 NY Slip Op 31958(U), cautioning counsel about the use of affidavits and Rule 19-a statements to avoid word-count limits, stating:

A brief note on process: Motions for summary judgment require Rule 19-a statements, but such a statement is not a substitute for including a Statement of Facts (with citations to the record) in the Memorandum of Law. A statement of facts is an integral part of a summary judgment brief, not merely an appendix. And counsel may not evade the applicable word-count limits by omitting facts sections from their briefs. Here, Landlord’s opening submission went on for 414 pages, including a nearly 7,000-word memorandum of law and numerous exhibits, yet did not include a facts section. Instead, counsel referred the Court to four separate affidavits, totaling an additional 11,816 words. Doing so, in the Court’s view, circumvented the wordcount limit set forth in the Commercial Division Rules. While the Court will not strike the opening brief in this instance, counsel are advised that such submissions will not be considered in the future.

(Internal quotations and citations omitted).

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