Section 10.16 3. Form Of Proof Required

• Jurisdiction: New York

3. Form of Proof Required

Although the parties need not present proof in a form that would be admissible at trial, the substance or content of the proof must be admissible.¹⁴⁰⁵ “Only that portion of a deposition that would be admissible in evidence at trial may be introduced on a summary-judgment motion.”¹⁴⁰⁶ Statements that are merely conclusory will be disregarded, as will those not based on personal knowledge.¹⁴⁰⁷ Because hearsay is inadmissible at trial, it cannot be used as proof in a summary judgment motion.¹⁴⁰⁸

Parties cannot succeed on summary judgment by relying upon documents unless their admissibility has been stipulated to or they have been properly authenticated.¹⁴⁰⁹ “Authentication is a ‘condition precedent to admissibility.’ . . . [U]nauthenticated documents cannot be considered in a motion for summary judgment.”¹⁴¹⁰ An extract from a deposition lacking certification¹⁴¹¹ is unauthenticated and thus inadmissible.¹⁴¹²

Finally, a party should not submit an entire deposition transcript without specific citations to relevant portions.¹⁴¹³

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Notes:

^[1405] . Collier v. Budd Co., 66 F.3d 886 (7th Cir. 1995); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008); Wells Dairy, Inc. v. Travelers Indem. Co., 241 F. Supp. 2d 945 (N.D. Iowa 2003); Kephart v. Data Sys. Int’l, Inc., 243 F. Supp. 2d 1205 (D. Kan. 2003); Ashley, 201 F. Supp. 2d 1158 (depositions); Conoco Inc. v. J.M. Huber Corp., 148 F. Supp. 2d 1157 (D. Kan. 2001), aff’d, 289 F.3d 819 (Fed. Cir. 2002); Pas Commc’ns, Inc. v. Sprint Corp., 139 F. Supp. 2d 1149 (D. Kan. 2001); 10B Charles Wright et al., Federal Practice and Procedure, § 2738, at 330 (3d ed. 1998) (“the first requisite is that the information [the affidavits] contain (as opposed to the affidavits themselves) would be admissible at trial”) (citation omitted).

^[1406] . 10A Wright, supra note See 10A Charles Wright, et al., Federal Practice and Procedure § 2722, at 373 (3d ed. 1998) (citation omitted) (10A Wright)., § 2722, at 371–72.

^[1407] . SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133 (2d Cir. 2009) (personal knowledge required); Santos v. Murdock, 243 F.3d 681 (2d Cir. 2001); Wells Dairy, Inc., 241 F. Supp. 2d at 956; Ashley, 201 F. Supp. 2d at 1164 (depositions); Conoco Inc., 148 F. Supp. 2d at 1166; Pas Commc’ns, Inc., 139 F. Supp. 2d at 1179.

^[1408] . See Woods v. Newburgh Enlarged City Sch. Dist., 288 Fed. Appx. 757 (2d Cir. 2008); Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362...