* Motion for Summary Judgment

Question 1

What is a motion for SJ?

Answer 1

Enables a party to show, before trial, that even though the pleadings may be sufficient on their face (aka pleadings can survive a motion to dismiss for failure to state a CoA), THERE IS NO GENUINE ISSUE OF MATERIAL FACT requiring a trial.

If the court finds genuinely controverted any fact on which LIABILITY depends, it cannot grant the motion.

Question 2

Timing for SJ motion

Answer 2

Earliest time to make- after there is “joinder of issue” meaning there is an answer to the main claim or reply to the counterclaim

Latest time to make- no later than 120 days after filing of note of issue

EXCEPTIONS-

• court can reduce the latest time to make to as early as the 30th day after the filing of the note of issue
• Motion may be permitted after expiration of 120 days from filing of note of issue if moving party shows “good cause” (procedural excuse, such as law office failure or delayed service of discovery documents until after the filing of the note of issue may constitute “good cause”; the strength of the motion on the merits does not qualify as good cause)

Question 3

Using CPLR 3211 grounds in a motion for SJ?

Answer 3

It is permissible to base a SJ motion on any of the grounds listed in 3211(a) so long as they are adequately preserved.

Question 4

Proof on SJ Motion

Answer 4

• Any form of admissible evidence, documentary or otherwise, may be considered
• Affidavits are the primary source of proof—should only be made by those with first-hand knowledge of the facts
• Opposing party must respond to a fact attested to in the moving papers, and if he doesn’t he is deemed to admit it. He cannot simply rely on the pleadings to show that a triable issue of fact exists b/c pleadings are not evidence
• Evidence construed in a light most favorable to the movan

Question 5

Additional Discovery for Opposing Party

Answer 5

If the opponent establishes with an affidavit that he is not yet able, through no fault of his own, to produce opposing evidence, the court can either deny summary judgment or grant a continuance (adjournment) to permit additional evidence to be obtained

Question 6

Searching the Record

Answer 6

• Court reviews all of the evidence in the record w/ respect to the claim on which SJ is sought, regardless of which side submitted the motion
• If it appears that any party other than the moving party is entitled to a SJ, the court may grant such judgment w/o the necessity of a cross-motion.

Question 7

What if the only remaining issue of fact concerns the amount of damages (aka there is no issue of fact as to liability)

Answer 7

Court may grant partial SJ as to liability and then order an immediate trial on the issue of damages

Question 8

PRE-ANSWER MOTIONS FOR SJ:

• In what two situations is SJ permitted prior to service of the answer?
• minimum notice for return date?

Answer 8

(1) CONVERSION OF MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION
- Δ’s pre-answer motion to dismiss for failure to state a cause of action can be CONVERTED BY THE COURT into summary judgment, thereby allowing for decision on the basis of evidence rather than on the face of the pleadings
- ONLY CONVERTS IF: (1) at least one of the parties has submitted factual affidavits in connect w/ the motion to dismiss; (2) the court gives NOTICE to the parties that it is converting so that they have opportunity to submit additional evidence

(2) MOTION FOR SJ IN LIEU OF A COMPLAINT
- In TWO types of actions, π may, if she wishes, move for summary judgment at the same time she serves process by accompanying the summons with motion papers for summary judgment; in these instances, the motion for summary judgment is served “in lieu of the complaint”
- ACTION ONE = claims based on an instrument for the payment of money only (negotiable and even non-negotiable but NOT ordinary breach of K); all you have to show the court are the instrument itself & proof of non-payment
- ACTION TWO = claims for recognition of a prior judgment; will only be granted if judgment qualifies for recognition under FFC or comity

RETURN DATE

• if D was served by personal delivery in NY: 20 days
• if D was served any other way: 30 days after service complete