On March 14, 2023, the First Department issued a decision in RCM/CMG Portfolio Holding, LLC v. Giordano, 2023 NY Slip Op. 01265, rejecting affidavits filed in support of summary judgment that were inconsistent with earlier deposition testimony, explaining:
We find that issues of fact exist as to whether defendant James Giordano made any actionable misrepresentations. Specifically, plaintiff’s principals testified at their depositions (and reiterated in affidavits) that Giordano falsely represented to them that uncollectable receivables had recently been written off in accordance with company policy, that the subject receivables would perform well, and that certain receivables were valued at a certain (allegedly inflated) amount. At least some of these represent false statements of present facts and not just mere puffery, opinions of value or future expectations.
To the extent, however, that plaintiff relies on its principals’ assertions in their affidavits that Giordano misrepresented to them that all of the receivables to be purchased were “viable and collectable,” this reliance is misplaced. They did not reference such a statement at their depositions, despite specific questioning, and affidavit testimony that is obviously prepared in support of ongoing litigation that directly contradicts deposition testimony previously given by the same witness, without any explanation accounting for the disparity, creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment.(Internal quotations and citations omitted).