Third District Court of Appeal
State of Florida
Opinion filed March 3, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1921
Lower Tribunal No. 16-33252
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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
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Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla. 1968)).
Reversed.
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