MICHAEL KING v. STANISLAV ZASLAVSKIY

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 3, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-1921 Lower Tribunal No. 16-33252 ________________

Michael King, Appellant,

vs.

Stanislav Zaslavskiy, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Silverberg & Weiss, P.A., and Paul K. Silverberg and Kraig S. Weiss (Weston), for appellant.

Eric J. Grabois, for appellee.

Before LOGUE, MILLER and LOBREE, JJ.

PER CURIAM.

Appellant, Michael King, appeals a final summary judgment rendered in favor of appellee, Stanislav Zaslavskiy. In the proceedings below, King

opposed summary judgment through the filing of two declarations that he

contended demonstrated a genuine issue of material fact. Although

authorized under Rule 56 (c)(4) of the Federal Rules of Civil Procedure

governing federal summary judgment proceedings, it is far from clear that

such declarations are similarly admissible in Florida summary judgment

proceedings. We decline to decide that issue here. The documents

submitted in opposition to summary judgment were based upon personal

knowledge and sworn under penalty of perjury, and the motion to exclude

them was not made until the hearing on summary judgment. Accordingly,

appellant’s motion for a continuance to correct the technical differences

between a declaration and an affidavit should have been granted. See

United Auto. Ins. Co. v. Affiliated Healthcare Ctrs., Inc., 43 So. 3d 127, 131

(Fla. 3d DCA 2010) (“[T]he trial court’s refusal to permit amendment of an

affidavit’s technical defects constitutes a departure from the essential

requirements of the law resulting in a miscarriage of justice.”); United Auto

Ins. Co. v. Merkle, 32 So. 3d 159, 162 (Fla. 4th DCA 2010) (“In this case, the

circuit court failed to apply the correct law . . . when it affirmed the summary

judgment on grounds that the Glatzer affidavit was technically deficient,

without providing United the opportunity to cure the defects.”) (citing

2 Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla. 1968)).

Reversed.