Commercial Litigation Update

As previously reported on June 3, 2024, the January 1, 2024 amendments to CPLR 2106 revised the statutory language required for attorney affirmations in New York.

At that time, we cautioned that attorney affirmations relying on the traditional “under the penalty of perjury” language could be deemed defective under the amended statute, which now requires revised language that the statements are affirmed, among other things, “under the penalties of perjury under the laws of New York, which may include a fine or imprisonment.” Since then, as anticipated, courts have begun to strictly enforce the revised requirements, with several rejecting affirmations that fail to incorporate the updated statutory verbiage. However, recent decisions suggest that—at least in some circumstances—such defects may be curable.

On October 30, 2024, in Alternative Global One, LLC v. Feingold, the New Jersey Appellate Division affirmed a trial court’s orders denying a New Jersey litigant’s motion to quash a subpoena for his deposition in underlying Florida litigation to which he was not a party. This decision illustrates that a litigant, even a non-party, must do more than assert blanket, unsubstantiated objections to a subpoena ad testificandum.

The appeal arose from a Florida litigation. In Alternative Global One, LLC v. Feingold, No. 2023-000688-CA-01 (Fla. Cir. Ct. filed Jan. 17, 2023), plaintiffs Alternative Global Companies filed suit against defendants David Feingold and Michael Dazzo, alleging breach of fiduciary duty, civil theft, conversion, replevin, tortious interference, civil conspiracy, accounting, and unjust enrichment. Along with Richard Cardinale, defendants served as co-managing members of the Alternative Global Companies. But after their resignation, defendants allegedly “attempt[ed] to convert [certain investments] from the Alternative Global Companies to their own benefit” and refused to surrender corporate books and records that they maintained. Pursuant to Rule 4:11-4(b), plaintiffs served a subpoena ad testificandum on appellant Daniel W. Amaniera, who was not a party to the litigation, seeking only to depose him in New Jersey.