Summary Judgment

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 297-364

Chapter 37

SUMMARY JUDGMENT

QUICK VIEW

Definition: A summary judgment is a judgment rendered on motion without a trial.

Scope of Chapter: Overview of summary judgment and partial summary judgment. Requirements for summary

judgment. Burdens of proof on a motion for summary judgment (MSJ). Evidence available for a MSJ. Initiating

and responding to a MSJ. Decision and disposition. Post-decision motions and appeal.

Strategies and Tactics: Keep the possibility of a motion for summary judgment in mind throughout the pretrial

period, and plan your discovery with a motion for summary judgment in mind. Once you decide to make a

motion for summary judgment, be clear on the substantive law, and focus on the material facts.

Statutes and Rules: CPLR 3212.

Related Topics: Pleadings, Ch 15; Motion Practice, Ch 16; Discovery, Ch 24; Motions to Dismiss, Ch 36;

Expedited Judgment, Ch 38; Default Judgment, Ch 39.

Forms: See digital access for the following forms:

• Form 37:10, Notice of Motion for Summary Judgment.

• Form 37:20, Affirmation in Support of Motion for Summary Judgment.

• Form 37:30, Affidavit in Support of Motion for Summary Judgment.

• Form 37:40, Memorandum of Law in Support of Motion for Summary Judgment.

• Form 37:50, Notice of Motion for Leave to File Late Summary Judgment Motion.

• Form 37:60, Affirmation in Support of Motion for Leave to File Late Summary Judgment Motion.

• Form 37:70, Affidavit in Support of Motion for Leave to File Late Summary Judgment Motion.

TABLE OF CONTENTS

I. Overview

A. Basic Points

§37:01 Nature and Purpose

§37:02 Available in All Actions, Except...

§37:03 Pleadings Limit Scope, Unless...

§37:04 By Any Party, After Joinder of Issue

§37:05 Effect of Court’s Decision

NEW YORK CIVIL PRACTICE BEFORE TRIAL 37-2

B. Advantages

§37:10 Saves Time, Effort and Expense of Trial

§37:11 Gets You Organized for Trial (If Trial Is Necessary)

§37:12 Forces Opponent to Reveal Evidence and Arguments

§37:13 Can Encourage Settlement

§37:14 Can Avoid Jury Prejudice

§37:15 Can Eliminate Claims, Defenses, & Issues

§37:16 Can Establish Law of Case

§37:17 Can Establish Facts as Undisputed

§37:18 Educates Judge for Trial

C. Disadvantages

§37:30 Expensive and Time Consuming

§37:31 Easily Defeated

§37:32 Uphill Battle

§37:33 Motion May Boomerang

§37:34 Tips Your Hand

D. Strategies

§37:40 Consider MSJ Throughout Pretrial Period

§37:41 Plan Discovery with MSJ in Mind

§37:42 Know the Substantive Law

§37:43 Focus on Material Facts

§37:44 Make Clear and Simple

II. Partial Summary Judgment

A. Basic Points

§37:50 Authority and Purpose

§37:51 Procedure (Same as for Full MSJ)

§37:52 Advantages

§37:53 Disadvantages

§37:54 Interest Vests if Judgment on Liability

§37:55 Appropriate Circumstances

§37:56 Dismissing Claim on the Merits

§37:57 Partial Summary Judgment on Liability in Motor Vehicle Cases

B. Severance, Stay, and Conditions

§37:70 Authority

§37:71 Severance

§37:72 Stay

III. Requirements for Summary Judgment

A. Claim or Defense Established “As a Matter of Law”

§37:80 Requirement

§37:81 Burdens of Proof

§37:82 Issues of Law

37-3 SUMMARY JUDGMENT

B. No Triable Issue of Fact

1. BASIC POINTS

§37:90 Dispute Required

§37:91 Hard Evidence Required

§37:92 Conclusory Statements Insufficient

2. ONLY MATERIAL ISSUES COUNT

§37:100 Basic Points

§37:101 What Is “Material”

§37:102 Examples of Immaterial Facts

3. INFERENCES, DOUBTS, OR CONFLICTS CAN DEFEAT MSJ

§37:110 Motion Denied in Close Cases

§37:111 Inferences Drawn Against Movant

§37:112 Compare: Inferences Favoring Movant

§37:113 Conflicts and Credibility

§37:114 Incredible Affidavits

C. Compare: Issues of Law on MSJ

1. BASIC POINTS

§37:120 Compare: Issue of Fact

§37:121 Issues of Law are Subject to MSJ

2. WRITTEN INSTRUMENTS

§37:130 Construction of Contracts

§37:131 Application of Statute of Frauds

§37:132 Facts Applied to Insurance Coverage

3. NEGLIGENCE

§37:140 Existence and Scope of Defendant’s Duty to Plaintiff

§37:141 Defendant’s Lack of Due Care

§37:142 Proximate Cause of Injury

§37:143 Comparative Fault

IV. Burdens on MSJ — and How to Meet Them

A. Basic Points

§37:150 Movant Has Initial MSJ-Burden

§37:151 Burden Remains — Even if No Opposition

§37:152 Burden Depends on Issues in Pleadings

B. If Movant Has Trial Burden (MSJ by Plaintiff)

1. MOVANT’S MSJ-BURDEN

§37:160 Must Prove Each Element

§37:161 Must Disprove Affirmative Defenses

2. NON-MOVANT’S MSJ-BURDEN

§37:170 If Movant Fails to Meet MSJ-Burden

§37:171 If No Judgment as a Matter of Law

§37:172 If Burden Shifts

§37:173 Must Provide Specific, Probative Facts

§37:174 Raising New Affirmative Defenses