Ivane Benidze, Plaintiff, v. Liming Zhu, Defendant. (2026)

This action arises from a motor vehicle collision in which defendant Liming Zhu backed her vehicle out from a driveway into plaintiff Ivane Benidze's vehicle. Before the Court is plaintiff's motion for partial summary judgment on liability, to strike defendant's affirmative defenses of culpable conduct, and to set the matter down for a damages trial.¹ Defendant opposes the motion. For the reasons below, the motion is denied.

"Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law." Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47, 54 (2d Dep't 2011); see also Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012) (noting summary judgment is a "drastic remedy"). "To prevail on a motion for summary judgment, the movant must make a prima facie showing by submitting evidence that demonstrates the absence of any material issues of fact." Nellenback v. Madison Cnty., 44 NY3d 329, 334 (2025) (citing CPLR 3212(b)). Once such prima facie showing has been made, the burden shifts to the opposing party to show there are material issues of fact requiring a trial. Bazdaric v. Almah Partners LLC, 41 NY3d 310, 316 (2024) (citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986)). The Court must view the facts in the light most favorable to the nonmoving party. Nellenback, 44 NY3d at 334.

The only evidence plaintiff submits in support of their claim is plaintiff's sworn affirmation in English asserting the details of the incident. NYSCEF No. 16. The affirmation is accompanied by a translator's affidavit by Maria Tichomirova, who states that they are "fluent in both English and Georgian," is "fully capable of translating between English and Georgian," and "translated the above Plaintiff's Affirmation in Support from English to Georgian for the Plaintiff." Id. at pdf pg. 3. Tichomirova further avers that plaintiff "fully understood and agreed with everything contained therein." Id.

The English affirmation and translator's affidavit are insufficient. Pursuant to CPLR 2101(b), papers "shall be in the English language" or, "[w]here an affidavit or exhibit annexed to a paper is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." CPLR 2101(b). These requirements are no less applicable where, as here, a party submits only an English affirmation accompanied by a translator's affidavit without a foreign language version. Reyes v. Underwood, 232 AD3d 636, 637-38 (2d Dep't 2024) (CPLR 2102(b) applied where non-English-speaking plaintiff submitted an English affidavit stating it was read to him in Spanish prior to signing, accompanied by a certificate of translation without a Spanish version of the affidavit). Failure to adhere to these requirements "render[s] the plaintiff's affidavit inadmissible." Id.

Here, Tichomirova's affidavit is insufficient for multiple reasons. First, the affidavit fails to state that her translation was "accurate" as required by CPLR 2101(b). Second, the affidavit is "conclusory," offering no explanation of Tichomirova's qualifications other than the fact that they are fluent, thereby failing to provide "sufficient detail concerning the extent" of Tichomirova's knowledge of the Georgian language. See Reyes, 232 AD3d at 637. More is required, such as "whether [they] grew up in a [Georgian]-speaking family, learned [Georgian] in school, ever practiced law in [Georgian]-speaking or predominantly [Georgian]-speaking jurisdictions, or received certifications, licenses, commendations, awards or anything acknowledging a [Georgian] language proficiency." Mendoza v. Gold, 80 Misc 3d 1215(A) (Sup. Ct., Kings Cnty 2023).

Third, even if the translator's affidavit had been sufficient, the plaintiff's English affirmation, without a version signed by plaintiff in their native language, would still be inadmissible in the Court's view. As has been repeatedly observed, "when an affiant does not fluently speak or read English[, the best practice] 'is to submit an affidavit in the foreign language, accompanied by an English translation ... authenticated with an affidavit by the translator.' " See Medina v. Medina, 242 AD3d 665, 666 (1st Dep't 2025) (quoting Thomas F. Gleason, Practice Commentaries, McKinney's Cons. Laws of NY, CPLR C:2101:2). Submitting an affirmation signed by an affiant written in a language they do not speak or read is an unacceptable substitute for this best practice. Indeed, CPLR 2101(b) by its plain text implicitly rejects the practice of submitting only an English affidavit without a translated version where the affiant cannot speak or read English. See CPLR 2101(b) (providing that documents "in a foreign language" must be accompanied by translation and translator's affidavit).

Moreover, the practice of submitting only an English affidavit signed by a party who does not speak or read English violates CPLR 2106 and 2309, which require affirmations to be made by sworn oath under penalty of perjury. An affiant must "swear falsely" to be found guilty of perjury, which Penal Law 210.00 defines as:

intentionally mak[ing] a false statement which he does not believe to be true (a) while giving testimony, or (b) under oath in a subscribed written instrument. A false swearing in a subscribed written instrument shall not be deemed complete until the instrument is delivered by its subscriber, or by someone acting in his behalf, to another person with intent that it be uttered or published as true.

Penal Law 210.00. If the affiant swears to an affirmation written in a language they do not understand, then by definition they cannot be convicted of perjury given that they cannot have made their written statement intentionally or with a belief in its truth. Rather, an affiant must sign an affirmation written in their native language to properly bind the affiant under oath and subject them to the penalty of perjury, as required under CPLR 2106 and 2309. Having an affiant swear to a document in a language they understand also makes sense as a practical matter, because without a written version of the oral "translation" the affiant is actually attesting to, there is no meaningful way for the opposing party to test the accuracy of the translation or effectively cross-examine the affiant using the affirmation they signed but could not understand.

For all of these reasons, the procedure used here—submitting an English affirmation sworn to by a plaintiff who admittedly does not read or speak English and accompanied only by an insufficient translator's affidavit—fails to provide admissible evidence in support of plaintiff's prima facie entitlement to summary judgment.

With no admissible evidence to support plaintiff's motion, it must be denied.

It is therefore

ORDERED that plaintiff's motion for summary judgment on liability, to dismiss affirmative defenses of culpable conduct, and to hold a trial on damages is denied.

E N T E R:

Dated: September 24, 2026

Brooklyn, New York

Hon. Andrew S. Amer

A.J.S.C.

FOOTNOTES

1.   The Court has reviewed the following papers in connection with determining this application: NYSCEF Nos. 11-16, 18-19.

Andrew S. Amer, J.