On March 31, 2025, Justice Reed of the New York County Commercial Division issued a decision in 470 4th Ave. Fee Owner, LLC v. Adam Am. LLC, 2025 NY Slip Op. 50396(U), declining to consider an attorney affirmation as evidence, explaining:
A movant seeking to dismiss a failure to procure claim may establish its entitlement by demonstrating that it complied with the contract provision requiring procurement of insurance. Here, Red Hook argues that it complied with its contractual obligation to obtain the requisite insurance but failed in its initial moving papers to submit copies of the policies obtained that purportedly comply with its contractual provision. An attorney affirmation is not admissible evidence and the court declines to accept counsel’s discovery response as evidence his client fully complied with its contractual obligations. Moreover, the court declines to accept counsel’s submission of the policies for the first time in reply.
(Internal citations omitted.)