Bellavia v. Hoppenstein: Nonconforming CPLR 2106 Party Affirmations Cannot Supply Facts on CPLR 3211 Motions (but Legal Argument May Still Be Considered)

Case: Bellavia v Hoppenstein, 2026 NY Slip Op 05267 (App. Div. 2d Dep’t Sept. 16, 2026)
Lower court orders appealed: Supreme Court, Suffolk County (Feb. 20, 2025; Apr. 1, 2025)
Primary statutes: CPLR 503(a), 510(3), 3211(a)(7), 2106, 2001

1. Introduction

This appeal arose from a Suffolk County defamation-and-injunction action brought by attorney-plaintiffs Leonard A. Bellavia and David Cohen (the “plaintiffs”) against defendant Yitzy Hoppenstein (the “defendant”). The dispute’s factual backdrop involved the defendant’s tenancy of premises located in Delaware County under a lease with Roxbury Garage, LLC (the “landlord”). Bellavia was a member of the landlord, and both plaintiffs served as the landlord’s counsel in matters involving the defendant.

Two procedural flashpoints reached the Appellate Division, Second Department:

  • Venue: whether the action should be moved from Suffolk County to Delaware County for witness convenience under CPLR 510(3).
  • Pleading dismissal / motion practice formality: whether the plaintiffs’ CPLR 3211(a) motion properly defeated three counterclaims—abuse of process, libel, and injunctive relief—where the motion relied in part on a party “affirmation” that did not conform to the then-effective form requirements of CPLR 2106.

2. Summary of the Opinion

The Second Department affirmed both orders. It held that the Supreme Court providently exercised its discretion in denying a venue change under CPLR 510(3) because the defendant failed to provide the required detailed showing about material witnesses and inconvenience.

On the counterclaims, the Second Department agreed that the Supreme Court improperly considered factual assertions contained only in Bellavia’s party affirmation because the affirmation’s perjury oath was not “in substantially the same form” as required by the version of CPLR 2106 then in effect. The defect was not cured in reply, and the court could not disregard it without prejudicing the defendant. Nevertheless, the Second Department affirmed dismissal of the counterclaims on the merits:

  • Abuse of process: commencing a civil action by summons and complaint is not “process” capable of being abused.
  • Injunctive relief counterclaim: improperly asserted against Bellavia in his capacity as a member of the landlord.
  • Libel counterclaim: the challenged statements were nonactionable opinion.

3. Analysis

3.1. Precedents Cited

A. Venue change for convenience (CPLR 510(3))

The court applied a well-established, demanding standard for discretionary venue changes based on witness convenience:

  • Bikel v Bakertown Realty Group, Inc. (157 AD3d 924, 925) and Landa v Poloncarz (215 AD3d 739, 741) supplied the checklist: the movant must identify prospective witnesses (names/addresses), describe the substance of their testimony, represent willingness to testify, and explain how they would be inconvenienced if venue is not changed.
    Influence: These cases framed the defendant’s failure as not merely “weak,” but legally insufficient—his showing was conclusory.
  • Black v Fraken Bldrs., Inc. (191 AD3d 498, 498) and Ryan v Great Atl. & Pac. Tea Co. (30 AD2d 549, 549) supported the discretionary “situs” consideration: “things being equal,” transitory actions often should be tried where the cause arose.
    Influence: These cases acknowledged Delaware County’s connection (property dispute; statements allegedly made there) but did not override the movant’s failure of proof and the plaintiffs’ Suffolk-based reputational injury allegations.
  • Gorodetsky v Bridgewater Wholesalers, Inc. (161 AD3d 722, 723) and Ambroise v United Parcel Serv. of Am., Inc. (143 AD3d 927, 928) reinforced that conclusory inconvenience assertions are inadequate.
    Influence: These decisions were used to reject the defendant’s generalized statements and to underscore that inconvenience must be shown with specificity.

B. Use of affirmations under CPLR 2106; defects and cure (CPLR 2001)

  • Matter of Sweet v Fonvil (227 AD3d 849, 851) supported that, under the version of CPLR 2106 then in effect, a party could submit an affirmation (not only a nonparty affidavit) in lieu of an affidavit.
    Influence: The problem was not that Bellavia used an affirmation; the problem was that the perjury attestation did not track the statutory form.
  • Matter of Grandsard v Hutchison (227 AD3d 491, affg 2024 WL 1957086, 2024 NY Misc LEXIS 72914 [Sup Ct, NY County, Latin, J., index No. 153605/24]) was used to enforce the “substantially the following form” requirement: the affirmation should refer to “the laws of New York” and the potential penalties for perjury.
    Influence: This precedent supplied the direct doctrinal basis for deeming Bellavia’s oath nonconforming.
  • Kallo v Kane St. Synagogue (241 AD3d 522, 523-524) supported the proposition that the error should be corrected (e.g., by a conforming reply affirmation) rather than left to the court to overlook.
    Influence: The Second Department treated the failure to cure as consequential to whether the defect could be forgiven.
  • Williams v Light (196 AD3d 668, 669-670) was cited as a contrast (“cf.”): defects can sometimes be disregarded where no prejudice results.
    Influence: By distinguishing this line of authority, the court emphasized that here the defect could not be ignored without prejudicing the defendant—because the trial court would effectively be crediting extra-pleading facts from an invalid oath.
  • Matter of County of Essex [Golden Ring Intl., Inc.] (195 AD3d 1187, 1188) supported a practical carve-out: even if an affirmation is defective as a factual sworn statement, courts may still consider the document to the extent it presents legal argument not dependent on the defective factual assertions.
    Influence: This prevented the form defect from disabling the motion entirely; it narrowed the permissible use of the submission.

C. CPLR 3211(a)(7) standard; counterclaims’ substantive defects

  • Guggenheimer v Ginzburg (43 NY2d 268, 275) supplied the controlling CPLR 3211(a)(7) framework: on a pleading challenge, the issue is whether a cause of action exists; where evidentiary material is considered, dismissal is appropriate only when the pleader’s “material fact” is shown not to be a fact at all and no significant dispute exists.
    Influence: This case underwrote the court’s method: it separated pleading sufficiency from evidentiary proof and assessed whether the defendant had any legally cognizable counterclaim.
  • Hoppenstein v Zemek (62 AD2d 979, 980) was decisive on abuse of process: “the mere institution of a civil action by summons and complaint is not legally considered such process as is capable of being abused.”
    Influence: This foreclosed the abuse-of-process counterclaim at the threshold, regardless of motive allegations.
  • Whitfield v Law Enforcement Empls. Benevolent Assn. (237 AD3d 1139, 1142-1143) supported dismissal of the injunctive counterclaim because it was improperly directed at Bellavia “in his capacity as a member of the landlord.”
    Influence: The case reinforced proper party/capacity principles—injunctive relief compelling LLC-level action cannot be obtained by suing an individual in the wrong legal posture.
  • Tsamasiros v Jones (232 AD3d 816, 818) supported dismissal of the libel counterclaim because the alleged defamatory statements were nonactionable opinion.
    Influence: The precedent supplied the doctrinal boundary between actionable defamatory fact and protected opinion.

3.2. Legal Reasoning

A. Venue: reputational injury and rigorous witness-convenience proof

The Second Department’s venue analysis proceeded in two steps:

  • Step 1 (CPLR 510(3) proof requirements): The defendant did not meet the required showing (names/addresses, testimony, willingness, specific inconvenience). This failure alone justified denial under the “convenience of material witnesses and the ends of justice” standard.
  • Step 2 (discretionary situs considerations): Even though Delaware County had meaningful ties (property dispute; alleged statement recipient residing/working there), Suffolk County also had material ties: plaintiffs resided there, maintained their law office there, and allegedly suffered reputational and business harm there. Thus, “things being equal” did not favor transfer—especially when the movant did not satisfy Step 1.

B. CPLR 2106 formality: substance matters when facts are offered under oath

A core doctrinal contribution of the decision is its careful separation between (i) factual matter offered “under penalties of perjury” and (ii) legal argument. The court treated CPLR 2106’s prescribed attestation language as a meaningful safeguard: when a litigant asks the court to rely on sworn factual assertions (particularly on a CPLR 3211 motion where “evidentiary material” can affect outcome), the oath must substantially conform.

The court then applied CPLR 2001’s remedial principle but drew two limits:

  • No cure was attempted: the plaintiffs did not submit a conforming reply affirmation.
  • Prejudice constraint: the defect could not simply be disregarded because doing so would prejudice the defendant—i.e., it would allow nonconforming, extra-pleading “facts” to be treated as sworn evidentiary material.

At the same time, the court avoided an overly formalistic result by permitting reliance on the defective affirmation to the extent it functioned as legal briefing rather than as a source of disputed facts.

C. Substantive counterclaim failures

  • Abuse of process: Under Hoppenstein v Zemek, the counterclaim failed because the alleged misconduct reduced to the “mere institution” of a civil action—insufficient as a matter of law.
  • Injunctive relief against Bellavia: The defendant sought an order compelling Bellavia to use his “position” in an LLC to force repairs/remediation. The court found the claim misdirected as pleaded—improperly asserted against Bellavia in his capacity as an LLC member rather than against a proper party in a proper form, consistent with Whitfield v Law Enforcement Empls. Benevolent Assn.
  • Libel: The statements alleged were deemed nonactionable opinion under Tsamasiros v Jones, eliminating a legally cognizable libel counterclaim.

3.3. Impact

A. Motion practice discipline under CPLR 2106

The decision underscores that CPLR 2106 is not merely clerical: when parties submit affirmations as evidentiary material, the attestation must substantially comply with the then-effective statutory form. Practical implications include:

  • Litigants must audit oath language: a perjury attestation missing statutory elements risks being unusable for factual proof.
  • Opponents have a concrete procedural objection: they can argue prejudice where a court relies on extra-pleading facts supplied only via a defective affirmation.
  • Courts may bifurcate usage: they may disregard defective “sworn” facts but still consider the document as legal argument (effectively treating it like an unsworn memorandum).

B. Venue in defamation cases with multi-county contacts

The venue holding reinforces two themes relevant to defamation disputes:

  • Witness-convenience transfer requires granular proof—conclusory claims will not suffice even if the underlying controversy centers on property or events elsewhere.
  • Reputational/business injury location matters: where plaintiffs live and work (and claim harm) can weigh against transfer, particularly when the movant’s CPLR 510(3) showing is deficient.

C. Counterclaims as leverage: heightened screening at the pleading stage

By affirming dismissal of all three counterclaims, the opinion signals that counterclaims commonly pleaded as litigation leverage—abuse of process, libel-in-response, and improvised injunctive demands—remain vulnerable where their legal elements are not met or the proper party/capacity is not pleaded.

4. Complex Concepts Simplified

  • CPLR 510(3) “convenience of material witnesses”: A venue change is not granted because another county is “more connected” in the abstract; the movant must identify specific witnesses, what they will say, that they will testify, and how travel/logistics would materially burden them.
  • Affidavit vs. affirmation (CPLR 2106): An affidavit is sworn before a notary. An affirmation is a written statement made “under penalties of perjury” that can substitute for an affidavit when CPLR 2106 allows it—but the oath language must substantially match the statutory form applicable at the time.
  • CPLR 2001 (curing defects): Courts can allow correction of mistakes and may disregard defects that do not prejudice a substantial right. If the defect would change the evidentiary playing field in a way that harms the opposing party, it is less likely to be disregarded.
  • CPLR 3211(a)(7): The question is whether the pleading describes a legally recognized claim. If the court considers evidence, dismissal is appropriate only where the evidence conclusively shows there is no claim.
  • Nonactionable opinion (defamation): Defamation generally requires a false statement of fact. Expressions of opinion—value judgments not provably true or false—are typically not actionable.
  • Abuse of process: It is not enough to allege someone sued you for an improper reason; the claim requires misuse of “process” in a technical sense. Under the cited authority, simply starting a civil lawsuit is not the kind of “process” that can be “abused.”

5. Conclusion

Bellavia v Hoppenstein affirms two practical rules with significant day-to-day consequences in New York practice. First, CPLR 510(3) venue changes demand a witness-specific, nonconclusory showing; without it, even a plausible “situs” argument will fail. Second—and most notably—the decision reinforces that CPLR 2106’s perjury attestation requirements matter when a party’s affirmation is used to supply factual “evidentiary material” on a CPLR 3211 motion: a nonconforming oath cannot be the vehicle for extra-pleading facts, though the court may still consider the submission for legal argument. On the merits, the counterclaims were independently defective under controlling precedent, illustrating the appellate court’s willingness to affirm dismissal where the pleaded theories do not fit recognized legal elements or proper party/capacity rules.