Part XX Summary-Judgment Motions: An OverVIew Summary-Judgment Motions: An OverVIew

• Jurisdiction: New York

Part XX —
Summary-Judgment Motions:
An Overview

In the last issue, Part XIX of this series, the Legal Writer finished discussing motions to dismiss. We continue this series on civil-litigation document drafting with how to write summary-judgment motions: moving for summary judgment, opposing summary-judgment motions, and cross-moving for summary judgment. We’ll explore each party’s burden in moving, opposing, or cross-moving for summary judgment; the documents you’ll need in support of your motion; and offer tips on writing to get the court to rule for you.

Preliminary Information About Summary-Judgment
Motions

Before moving, opposing, or cross-moving for summary judgment, you’ll want to know some basic information about summary-judgment motions.

Begin by consulting CPLR 3212 before moving for summary judgment.

On a summary-judgment motion, a court decides whether to grant a judgment for you without a trial. Without having a trial, you could win the entire lawsuit on the papers, that is, the admissible evidence you submit with a summary-judgment motion. The admissible evidence might consist of affirmations, affidavits, examination before trial (EBT) transcripts, photographs, diagrams, maps, records, reports, contracts, bills, admissions, checks, receipts, DVDs, disclosure responses and failures to disclose, stipulations, and like things that are admissible at trial, such as authenticated or certified documents.

Any party may move for summary judgment in any type of action. The one exception is found in CPLR 3212(e). A court may not grant summary judgment in the non-moving party’s favor in a matrimonial action.⁶⁹⁶ CPLR 3212(e) prohibits this type of “reverse summary judgment.”⁶⁹⁷

The earliest you may move for summary judgment is after issue has been joined⁶⁹⁸ — after the defendant serves its answer to the plaintiff’s complaint (or after the plaintiff serves its reply to the defendant’s counterclaim).⁶⁹⁹ A court may set a date after which no party may move for summary judgment. That date may not “be earlier than 30 days after the filing of the note of issue.”⁷⁰⁰ Make sure to check the judge’s rules for moving for summary judgment. In a scheduling order, a court might set a specific date by which you must move for summary judgment.⁷⁰¹ If the court doesn’t set a date, a party may move for summary judgment “no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.”⁷⁰² The Court of Appeals strictly enforces the 120-day rule unless you show good cause for your delay in moving for summary judgment.⁷⁰³

If a court shortens the time period in which you may move for summary judgment and your motion is untimely under the court’s rules, your motion will still be untimely even if you’ve moved within the statutory 120-day rule.⁷⁰⁴

If one party timely moves for summary judgment and another party untimely cross-moves for summary judgment, the party who missed the deadline may not “piggyback” on the timely motion.⁷⁰⁵

Moving for summary judgment is appropriate when no dispute exists about the material facts of the case. Whether a fact is material depends “on the law and its application to the claims and defenses in the pleadings.”⁷⁰⁶ You’ll be entitled to summary judgment if you establish the elements of a claim or a defense as a matter of law.

Moving for summary judgment under CPLR 3212 “automatically suspends all pending disclosure proceedings” until the court decides the motion or the “court orders otherwise.”⁷⁰⁷

If you, the non-moving party, fail to respond to a fact in opposition to the summary-judgment motion, the court will deem the fact admitted. Also insufficient is if you respond that you’re ignorant of a fact unless you show that your “ignorance is unavoidable and that with diligent effort the fact could not be ascertained in time for the motion.”⁷⁰⁸

Even if you don’t oppose a summary-judgment motion, the moving party must still prove that it’s entitled to summary judgment. The moving party must still show the court that no issue of fact warrants a trial.

The court will construe the evidence in the light most favorable to the non-moving party. That doesn’t mean that as the non-moving party you may be “evasive, indirect, or coy” in your opposition papers. Showing only part of your proof in your opposition papers and waiting until trial to show the rest of your proof might backfire.⁷⁰⁹

Included in your proof on your summary-judgment motion should be a copy of the pleadings. Some judges automatically deny a summary-judgment motion when the moving party fails to include the pleadings in the motion papers. Other judges allow the moving party under CPLR 2001 to remedy the omission.

Moving for summary judgment more than once in a single case is rare. CPLR 3212, however, provides no restriction on the number of summary-judgment motions you may make in the same case. But courts discourage parties from making “‘[m]ultiple summary judgment motions in the same action . . . in the absence of a showing of newly discovered evidence or other sufficient cause.’”⁷¹⁰ A court might allow a second summary-judgment motion if “a new, as yet untested defense is permitted [by the court] to be added by amendment.”⁷¹¹

Some courts, such as the Commercial Division of Supreme Court, New York County, have additional and specific rules for summary-judgment motions. Familiarize yourself with those rules before moving for summary judgment.

More nuances exist about how to move, oppose, and cross-move for summary judgment. The Legal Writer will address those nuances in upcoming issues.

You’ll need to decide what tactics and strategies you’ll use in...