Section 10.15 2. Motion Opponent

• Jurisdiction: New York

2. Motion Opponent

If a motion is properly made and supported, the opposing party cannot respond by simply referring to allegations or denials in its pleading.¹³⁹³ Rather, to prevail and defeat the motion, the nonmoving party must make an active and serious response that challenges the movant’s position—that is, it must set forth “specific facts showing that there is a genuine issue for trial.”¹³⁹⁴

Setting out a smokescreen of immaterial or irrelevant facts will not suffice. The facts must be specific, and they must go to the relevant points, showing that at least one genuine issue exists for trial.¹³⁹⁵ Speculation, conclusory assertions or allegations, rumor, conjecture, evasion, hope or unfounded or improbable inferences, whether in an affidavit or a deposition,¹³⁹⁶ are not enough to defeat a well-founded motion for summary judgment.¹³⁹⁷ Self-serving affidavits lacking a factual basis in the record are likewise of little use.¹³⁹⁸ This is true for ordinary fact witnesses and for experts as well.¹³⁹⁹ “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.”¹⁴⁰⁰

Substantive law makes clear which facts are material and which are irrelevant.¹⁴⁰¹ A dispute over issues of fact does not matter if the facts in contention are immaterial.¹⁴⁰² The dispute must be a genuine one.¹⁴⁰³ The test is one of reasonableness. If a reasonable jury could return a verdict for the party opposing the motion, the motion will fail.¹⁴⁰⁴

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Notes:

^[1393] . Celotex Corp., 477 U.S. at 322–23.

^[1394] . FRCP 56; Celotex Corp., 477 U.S. at 322–23.

^[1395] . See Behrens v. Pelletier, 516 U.S. 299 (1996); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367 (Fed. Cir. 2002); Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220 (11th Cir. 2002); Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001); Albiero v. City of Kankakee, 246 F.3d 927 (7th Cir. 2001); Santos v. Murdock, 243 F.3d 681 (2d Cir. 2001); Herring v. Canada Life Assurance Co., 207 F.3d 1026 (8th Cir. 2000); Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754 (11th Cir. 1995); Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733 (S.D. Tex. 2003); Kephart v. Data Sys. Int’l, Inc., 243 F. Supp. 2d 1205 (D. Kan. 2003); Ashley v. S. Tool Inc., 201 F. Supp. 2d 1158 (N.D. Ala. 2002), aff’d, 62 Fed. Appx. 318 (11th Cir. 2003).

^[1396] . Markel v. Bd. of...