Kwi Bong Yi v. JNJ Supply Corp

In Kwi Bong Yi v. JNJ Supply Corp. (274 AD2d 453, 711 N.Y.S.2d 906 [2d Dept 2000]) the affidavit was written in English, but the affiant spoke only Korean. The affidavit contained a statement that the affidavit, as written, had been translated to the affiant in Korean. Unfortunately, there was no affidavit from the translator stating his or her qualifications and that the translation was accurate. Thus, the affidavit did not comply with CPLR 2101 (b). In addition, the plaintiff in that case relied solely upon the inadmissible affidavit to create an issue of fact in opposition to the defendants' demonstration of their prima facie entitlement to judgment. The dissenting Judge argued that "this Court has consistently held that where the party opposing summary judgment submits evidence which is not in admissible form, the motion court should not consider it and summary judgment should be granted" (id. at 454). Nevertheless, the dissenting Judge stated: "I have no objection to inadmissible evidence being considered, if there is a reasonable excuse for the failure to have the evidence in admissible form and if the party opposing summary judgment does not rely solely upon the inadmissible proof to sustain its burden" (id. at 455).