Affirmation
(Motion to Compel Discovery) (NY)

Summary

This Affirmation (Motion to Compel Discovery) is a standard form that attorneys can use to support a motion to compel discovery under New York Civil Practice Law and Rules (C.P.L.R.) 3124 in a civil action in New York state court. This template contains practical guidance, drafting notes, and alternate clauses. To obtain an order compelling discovery under N.Y. C.P.L.R. 3124, you can make a motion on notice or proceed by order to show cause. Motion papers typically consist of: • A notice of motion • An affirmation of good faith • Additional supporting affirmations or affidavits, if any • A memorandum of law • A litigation cover An affirmation is a statement subscribed and affirmed to be true under penalties of perjury. N.Y. C.P.L.R. 2106. It has the same force and effect as an affidavit, but does not need to be notarized. N.Y. C.P.L.R. 2106. An affirmation in support of a motion is typically submitted in order to: • Put evidence such as deposition testimony before the court • Attest to facts at issue • Authenticate documents In discovery motions, including motions to compel discovery, an affirmation is required to confirm that "counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." 22 N.Y.C.R.R. § 202.7(a)(2). Before filing a motion to compel, you must confer with opposing counsel in a good faith effort to resolve the issues raised by your motion. See 22 NYCRR § 202.7(c). This rule applies in all case pending in the New York Supreme Court, including cases assigned to the Commercial Division. If a conference occurs, your motion papers must include an affirmation specifying: • The date, time, and length of the conference • All participants • The nature of the parties' communication • The issues discussed –and– • Any resolutions agreed to by the parties See 22 NYCRR § 202.20-f; 22 NYCRR § 202.7(c). If a conference does not occur due to your adversary's unreasonable failure or refusal to participate, your affirmation must specifically detail all efforts made to confer with opposing counsel prior to your motion filing and your adversary's responses. See 22 NYCRR § 202.20-f; 22 NYCRR § 202.7(c). Under the C.P.L.R., you may make a motion to compel discovery when a person fails to respond to or comply with your disclosure requests, including: • A deposition notice • Deposition questions • A written demand for discovery and inspection (i.e., document requests) • Written interrogatories See N.Y. C.P.L.R. 3124. However, you may not file a motion to compel notice to admit responses. See N.Y. C.P.L.R. 3124. If a party fails to timely respond to your notice to admit, the court will deem the requested facts admitted and no further relief is necessary. See N.Y. C.P.L.R. 3123(a); Watson v. City of New York, 576 N.Y.S.2d 864 (1st Dep't 1991). Under C.P.L.R. 3124, you may move to compel disclosure from both parties and nonparties. See N.Y. C.P.L.R. 3122(a)(1), 3124. The C.P.L.R. authorizes the court to compel: • Compliance with the disclosure request –or– • A response from the noncompliant party See N.Y. C.P.L.R. 3124. For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on making a motion to compel discovery in New York State Supreme Court, see Motion to Compel Discovery: Making and Opposing the Motion (NY). For a model memorandum of law on a motion to compel, see Memorandum of Law (Motion to Compel Discovery) (NY). For a more detailed discussion of motions to compel discovery, see Weinstein, Korn & Miller, New York Civil Practice: CPLR P 3124.00–3124.08.