CPLR 2106 New York
According to 22 NYCRR 202.8 (c), "[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law."
Furthermore, CPLR 2106 provides that the "statement of an attorney. . . , when subscribed and affirmed by him [or her] to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit."
The practice of including legal argument in affidavits or affirmations has received disapproval from the courts (see e.g. Montefiore Med. Ctr. v. Crest Plaza LLC, 24 Misc 3d 1201[A], 889 N.Y.S.2d 506, 2009 NY Slip Op 51215[U], 5 n 3 [Sup Ct, Westchester County 2009]).
In Monteflore Med. Ctr., the Court admonished the practice, stating:
"[t]he [defendant] did not submit a memorandum of law and counsel improperly cites law in the submitted affirmation, which is really a 'briefermation.' This places counsel in the unseemly position of attesting to the truth of the legal arguments 'under penalties of perjury.' This practice is not appropriate and counsel should desist from it in the future" (2009 NY Slip Op 51215[U],at 5 n 3).