Section 10.5 1. Motion Proponent

JurisdictionNew York

1. Motion Proponent

The proponent of the motion must demonstrate entitlement to judgment as a matter of law;1332 failure to do so will defeat the motion irrespective of the sufficiency of the papers submitted in opposition.1333 In other words, even woefully defective opposition papers will not matter if the movant does not surmount its threshold burden. The movant must affirmatively show the merit of its claim or defense.1334 The affidavits submitted in support of the motion cannot be composed of conclusory assertions or allegations, speculation or mere hope, nor may the movant rely only upon the pleadings.1335 The movant must present evidentiary facts,1336 and they must be in admissible form.1337 The affiants must have personal knowledge of the facts.1338 The motion must be denied if any party shows facts sufficient to require a trial.1339

Evidentiary proof in admissible form does not have the same meaning on a summary judgment motion as it does at trial, where, naturally, the standards are strict. The requirements are relaxed here in view of the nature of this procedural device—a motion on papers:

[T]he standard of “evidentiary proof in admissible form” is a term of art. Affidavits—written statements under oath—are almost never admissible as evidentiary proof at trial, yet they are one of the principal forms of permissible evidence on a motion for summary judgment. What is meant by “admissible form” in this context is that the statements made in the affidavit would be admissible were the affiant called to testify as a witness at trial. 1340

The requirement that evidentiary proof be submitted in admissible form means that hearsay statements cannot be relied upon on such a motion.1341

Inadmissibility may also stem from noncompliance with the rules applicable to the witness’s review of a deposition. These rules are discussed at length in Part One, Chapter 8, and summarized here. Briefly, a deposition must be submitted to the witness for review, and the witness may make any desired changes “in form or substance.”1342 The witness should make any changes at the end of the deposition and include an explanation for each change made. Then, the witness must sign the transcript before an officer authorized to administer an oath. If the witness fails to sign and return the transcript within 60 days, it may be used as though it had been signed. The witness may not make any changes more than 60 days after receiving the transcript for review. The officer before whom the deposition was taken must certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony.1343

Noncompliance with the signing and certification procedures can produce a deposition in inadmissible form.

A party can successfully use an unsigned deposition on a summary judgment motion by providing proof of when the transcript was forwarded to the deponent to show that 60 days have passed since that date.1344 Such proof is necessary to ensure that the party using the deposition is not relying on an inaccurate transcript. A failure to make the required showing renders the transcript inadmissible on a motion for summary judgment, as happened in Pina, where the summary judgment motion of...

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