On July 13, 2023, Justice Masley of the New York County Commercial Division issued a decision in EPMMNY LLC v. NY CANNA LLC, 2023 NY Slip Op. 32455(U), refusing to consider legal arguments made in a supporting affidavit, explaining:
As an initial matter, defendants challenge the affidavit of David Feder, a member of EPMMNY, filed in opposition to each of the motions to dismiss. The NYCI Defendants argue that the Feder Affidavit should not be considered because it exceeds the word limit (Rule 17) by over 6,000 words, but defendants overlook that Feder’s affidavit is responsive to four motions. Feder’s 13,000-word affidavit is well below the limit of 24,000. Accordingly, defendants’ failure to articulate any prejudice caused by the alleged surplus is of no moment. However, the affidavit, replete with legal arguments, violates the court rules. Plaintiff fails to respond.
The court will consider the Feder Affidavit, only to the extent it supplements the factual allegations of the FAC, not the legal arguments. Affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims. Regardless, as discussed below, the Feder Affidavit does little to help plaintiff’s cause.
(Internal quotations and citations omitted).