Cutajar v. Commissioner of Social Security

S.D. New York

Cutajar v. Commissioner of Social Security

DecidedMay 25, 2020

Docket1:19-cv-05569

StatusUnknown

This text of Cutajar v. Commissioner of Social Security (Cutajar v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cutajar v. Commissioner of Social Security, (S.D.N.Y. 2020).

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USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRON SOUTHERN DISTRICT OF NEW YORK ICALLY FILED DOC #: Micky Cutajar, DATE FILED: 5/25/2020 Plaintiff, 1:19-cv-05569 (SDA) -against- ORDER Commissioner of Social Security, Defendant.

STEWART D. AARON, United States Magistrate Judge: WHEREAS, on March 26, 2020, Plaintiff filed a motion for attorney fees pursuant to the Equal Access to Justice Act (“EAJA”) (Mot. for Atty. Fees, ECF No. 17); and WHEREAS, in support of his motion, Plaintiff submitted an “Attorney’s Affirmation” that is not sworn and that has attached to it various exhibits (Olinsky Aff., ECF No. 18); and WHEREAS, Defendant opposes Plaintiff’s motion, in part, on the basis that “plaintiff has failed to support his fee request with a sworn affidavit or declaration under penalty of perjury” (Opp. Mem., ECF No. 23, at 1); and WHEREAS, unsworn statements by an attorney do not constitute admissible evidence, see Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009); and WHEREAS, in determining Plaintiff's motion, this Court only will consider admissible evidence, see Garcia v. Comprehensive Ctr., LLC, No. 17-CV-08970 (JPO) (BCM), 2019 WL 8274296, at *2 (S.D.N.Y. Nov. 21, 2019), report and recommendation adopted, 2020 WL 1435002 (S.D.N.Y. Mar. 24, 2020) (requiring attorney fee application to be based upon admissible evidence).

IT 1S HEREBY ORDERED THAT, if Plaintiff wishes the Court to consider the contents of the Attorney Affirmation, and its exhibits, as admissible evidence in support of his motion for attorney fees, then no later than June 2, 2020, he shall file an amended affirmation (or affidavit) that is sworn to under penalty of perjury. If timely submitted pursuant to the provisions of this Order, Plaintiff's amended affirmation (or affidavit) shall be deemed to have been filed on March 26, 2020. See Scarborough v. Principi, 541 U.S. 401, 418 (2004) (applying relation-back doctrine to amended EAJA application). SO ORDERED. DATED: New York, New York May 25, 2020 of irr a. Carr STEWART D. AARON United States Magistrate Judge

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USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRON SOUTHERN DISTRICT OF NEW YORK ICALLY FILED DOC #: Micky Cutajar, DATE FILED: 5/25/2020 Plaintiff, 1:19-cv-05569 (SDA) -against- ORDER Commissioner of Social Security, Defendant.

STEWART D. AARON, United States Magistrate Judge: WHEREAS, on March 26, 2020, Plaintiff filed a motion for attorney fees pursuant to the Equal Access to Justice Act (“EAJA”) (Mot. for Atty. Fees, ECF No. 17); and WHEREAS, in support of his motion, Plaintiff submitted an “Attorney’s Affirmation” that is not sworn and that has attached to it various exhibits (Olinsky Aff., ECF No. 18); and WHEREAS, Defendant opposes Plaintiff’s motion, in part, on the basis that “plaintiff has failed to support his fee request with a sworn affidavit or declaration under penalty of perjury” (Opp. Mem., ECF No. 23, at 1); and WHEREAS, unsworn statements by an attorney do not constitute admissible evidence, see Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009); and WHEREAS, in determining Plaintiff's motion, this Court only will consider admissible evidence, see Garcia v. Comprehensive Ctr., LLC, No. 17-CV-08970 (JPO) (BCM), 2019 WL 8274296, at *2 (S.D.N.Y. Nov. 21, 2019), report and recommendation adopted, 2020 WL 1435002 (S.D.N.Y. Mar. 24, 2020) (requiring attorney fee application to be based upon admissible evidence).

IT 1S HEREBY ORDERED THAT, if Plaintiff wishes the Court to consider the contents of the Attorney Affirmation, and its exhibits, as admissible evidence in support of his motion for attorney fees, then no later than June 2, 2020, he shall file an amended affirmation (or affidavit) that is sworn to under penalty of perjury. If timely submitted pursuant to the provisions of this Order, Plaintiff's amended affirmation (or affidavit) shall be deemed to have been filed on March 26, 2020. See Scarborough v. Principi, 541 U.S. 401, 418 (2004) (applying relation-back doctrine to amended EAJA application). SO ORDERED. DATED: New York, New York May 25, 2020 of irr a. Carr STEWART D. AARON United States Magistrate Judge

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