Section 10.6 2. Motion Opponent

JurisdictionNew York

2. Motion Opponent

If the movant makes out a prima facie case by means of a proper submission, the party opposing the motion must then rebut that showing and establish the existence of a genuine issue of material fact necessitating a trial.1347 The opponent likewise cannot rest upon a repetition of allegations set forth in the pleadings or bills of particulars. Rather, the opponent must, again by way of evidentiary facts in admissible form, contest the movant’s case and establish the existence of triable issues of material fact.1348

The party opposing a motion for summary judgment that sets out a prima facie case in proper form may not rely upon speculation, conjecture, conclusory assertions, self-serving statements or the mere hope that something may eventually come to light.1349 One form of speculation is testimony from a witness who does not actually have personal knowledge of the facts; witnesses must have personal knowledge of the facts.1350

An affidavit from an attorney who lacks personal knowledge of the facts may be used as a vehicle to submit a deposition transcript or excerpts therefrom or to marshal proof presented in proper form elsewhere, and this is often done both in support of and in opposition to motions for summary judgment.1351 However, such an affidavit is otherwise of no probative value. Speculation on the attorney’s part as to what the facts are or will be shown to be at trial does not give rise to an issue of fact.1352 These requirements apply both with regard to fact witnesses and expert witnesses.1353

If the party opposing the motion presents an acceptable excuse for failing to tender evidentiary proof in admissible form,1354 such party may use hearsay in opposition to a motion for summary judgment when the party properly identifies the witnesses and explains the substance of their testimony, how it is known what the testimony will be and how the witnesses acquired their knowledge.1355 “An underlying factor in a substantial proportion of the cases appears to be the fact that the defects in the opposition to the motion are curable upon the trial of the action.”1356

Whether an excuse for failing to submit admissible evidentiary proof will be acceptable depends upon the circumstances of the particular case.1357 In one case, the affidavit of defendant-driver was submitted in opposition to a motion for summary judgment, which ordinarily would have given rise to an issue of fact, but the defendant was precluded from testifying at trial for failure to appear at a deposition. The defendant failed to show the existence of other admissible proof not then produced but that could be produced at trial, nor did defendant offer any excuse for the failure to appear at the deposition. Plaintiff’s motion was granted.1358

Courts have also ruled that proof in inadmissible form may be used in opposition to summary judgment as long as it is not the only proof submitted.1359 A third situation in which reliance on proof in inadmissible form may not be fatal for the opponent of a motion is one in which a statement likely would be admissible pursuant to a hearsay exception.1360

The requirement for the submission of proof in admissible form will not be relaxed for the movant.1361

As noted, the party opposing a motion for summary judgment must assemble and lay bare affirmative proof. A failure to submit adequate opposition in proper form establishing the existence of triable issues of material fact will result in the granting of the motion. If, however, it appears from the opposition affidavits that facts essential to the opposition exist but cannot then be stated, the court may deny the motion or direct a continuance under CPLR 3212(f).1362 But the opponent cannot successfully invoke this provision by vague assertions or by expressions of mere hope that something will eventually turn up. Mr. Micawber is not the model here.1363



[1347] . Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131 (2000); Schick v. Metro. Suburban Bus Auth., No. 2125-06, 2007 WL 3992636 (Sup. Ct., Nassau Co. Oct. 30, 2007).

[1348] . Gonzalez, 95 N.Y.2d 124; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979); Indig v. Finkelstein, 23 N.Y.2d 728, 296 N.Y.S.2d 370 (1968) (affidavits that referred to persons named in bill of particulars as witnesses but devoid of facts as to what their testimony would be, how that was known or where the witnesses were during the events held insufficient to defeat motion); Rizzo v. Sherwin Williams Co., 49 A.D.3d 847, 854 N.Y.S.2d 216 (2d Dep’t 2008) (nonmovant did not raise triable issue of material fact because it failed to establish a causal connection between defendant’s product and harm to plaintiff); Borchardt v. N.Y. Life Ins. Co., 102 A.D.2d 465, 477 N.Y.S.2d...

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