On January 4, 2024, the First Department issued a decision in Continuum Energy Tech., LLC v. Iron Oak, Inc. (USA), 2024 NY Slip Op. 00022, holding that a debtor cannot challenge an affidavit made in connection with a confession of judgment, explaining:
CPLR 3218(a)(2) requires only an affidavit from the debtor, here, plaintiff Continuum Energy Technologies, LLC (CET). The statute does not require Iron Oak, the party seeking judgment by confession, to submit an attorney’s affirmation.
Further, plaintiffs lack standing to challenge the sufficiency of their own affidavits. As the debtor, CET may not challenge the sufficiency of the affidavits that its managing member, plaintiff John Preston, executed on its behalf.
Preston argues that he has standing because he (1) is a creditor of CET and (2) purchased the receivership’s assets. Even if there is admissible evidence of these facts, he still lacks standing. With respect to the first argument, he is not a third-party creditor. As for the second argument, a receiver stands only in the shoes of the judgment debtor and may only vindicate rights held by the judgment debtor in the first instance. Inasmuch as CET cannot challenge the sufficiency of its own affidavits, the receiver could not do so on its behalf; hence, Preston could not have purchased the receiver’s nonexistent right.
(Internal quotations and citations omitted).