Motion for Summary Judgment: A Guide for New Yorkers

What is a Motion for Summary Judgment?

A motion for summary judgment is a legal procedure that allows a party to a lawsuit to ask the court to decide the case in their favor without a trial. The “moving party” claims that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law.

In essence, a motion for summary judgment is a tool to resolve clear-cut cases without the complexities and duration of a traditional trial.

New York CPLR 3212 governs motions for summary judgment in New York state courts. Under CPLR 3212, a party may move for summary judgment in any action after "issue has been joined," which means after an answer has been filed.

The bottom of this blog contains a list of key holdings about the admissibility of evidence to support a motion for summary judgment.

How Does a Motion for Summary Judgment Work?

The moving party must file a motion with the court, along with supporting affidavits and exhibits. The motion must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.

The non-moving party can respond to the motion and submit their affidavits and exhibits. The non-moving party must show that there are genuine issues of material fact that need to be decided at trial.

If the court grants the motion for summary judgment, the case will be decided to favor the moving party without a trial.

The Legal Framework for Summary Judgment: New York CPLR 3212

The New York Civil Practice Law and Rules (CPLR) is a comprehensive set of rules that governs civil litigation in New York State. Within this vast framework, CPLR 3212 specifically addresses the motion for summary judgment.

1. Timing: Under CPLR 3212, a party can't file a motion for summary judgment until after 40 days from the commencement of the action. Additionally, unless the court sets a different date, such a motion should be made no later than 120 days after filing the note of issue.
2. Basis for the Motion: The party making the motion must show that there are no genuine disputes over material facts and that they are entitled to judgment as a matter of law. This is typically done by presenting evidence like affidavits, depositions, and documents.
3. Opposing the Motion: The party opposing the motion must present evidentiary facts demonstrating a genuine dispute. Merely denying the claims isn't sufficient; concrete evidence is required.
4. Court's Role: The court's duty is to examine the evidence presented by both sides. The court will grant the motion if there's no genuine issue regarding any material fact. However, the motion will be denied if any doubt or conflicting evidence leads the case towards trial.
5. Relevance to Summary Judgment: CPLR 3212 is the backbone of the summary judgment process in New York. It outlines the procedure, timing, and standards by which these motions are judged. For consumers and attorneys alike, understanding CPLR 3212 is crucial. It dictates how and when to file, what evidence is pertinent, and how the court will evaluate the motion. It's the rulebook for navigating the summary judgment terrain in New York's legal landscape.

When is a Motion for Summary Judgment Filed?

The timing of filing a motion for summary judgment is both strategic and procedural. Understanding when such a motion is typically filed within the context of a lawsuit is essential to anticipating its potential impact and preparing accordingly.

1. Procedural Timing: As per New York's CPLR 3212:
   • After Issue Has Been Joined: Any party can move for summary judgment once the issue has been "joined" in the action (an "Answer" filed).
   • Court-Set Date: The court may set a specific date after which no motion for summary judgment can be made. This date cannot be earlier than thirty days after filing the note of issue.
2. Strategic Considerations: While the CPLR provides a framework, the actual decision to file a motion for summary judgment often hinges on strategy. Parties might choose to file:
   • After Discovery: Once the discovery phase (where both sides exchange information and evidence) is complete, a party might feel they have enough evidence to show there's no genuine dispute of material fact.
   • Before Trial: If a party believes that the law is clearly on their side and there are no factual disputes, they might file a motion for summary judgment to avoid the uncertainties and expenses of a trial.
3. Case Developments: Sometimes, developments within a case can prompt a motion for summary judgment. For instance, if a key witness for one side becomes unavailable or if new evidence emerges that significantly strengthens one party's position, it might be deemed the right time to file the motion.

Check out Lexis for a granular look at filings in various counties across New York.

In summary, while there are procedural guidelines for when a motion for summary judgment can be filed, the actual decision often intertwines with the strategic considerations of the parties involved. Being aware of these timings and strategies can help in anticipating and responding to such motions effectively.

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Typical Timeline in a Lawsuit

Navigating the legal landscape can be daunting, especially when faced with a lawsuit's intricate steps and stages. Understanding the typical timeline can provide clarity and help parties anticipate what's next. Here's a general overview of the stages of a lawsuit:

1. Complaint/Petition: The lawsuit begins when the plaintiff (the party initiating the lawsuit) files a complaint or petition against the defendant (the party being sued), outlining the grievances and the relief sought.
2. Service of Process: Once the complaint is filed, the defendant is formally notified through a process known as service of process. This ensures the defendant is aware of the lawsuit and has an opportunity to respond.
3. Answer: The defendant has a specific period (often 20-30 days, depending on jurisdiction) to file an answer, addressing each allegation in the complaint and presenting any defenses.
4. Discovery: This is an extended phase where both parties exchange information relevant to the lawsuit. It can involve interrogatories (written questions), depositions (oral testimonies under oath), and requests for documents.
5. Motions: During or after discovery, parties may file various motions. One common motion is the motion for summary judgment, where a party argues that there's no genuine dispute of material fact and the case should be decided without a full trial.
6. Pre-Trial Proceedings: Before the trial, there might be pre-trial hearings to resolve final issues, discuss evidence, or even attempt settlement.
7. Trial: If no settlement is reached and motions don't resolve the case, it proceeds to trial. Both parties present their evidence, and either a judge or jury makes a decision.
8. Judgment: After the trial, the court issues a judgment, which is the final decision in the case. It outlines any relief granted, such as monetary damages or specific actions the defendant must take.
9. Appeal: If either party believes there was a legal error in the trial, they can appeal to a higher court. This isn't a re-trial but a review of the legal aspects of the original trial.
10. Enforcement: If the judgment involves a monetary award and the losing party doesn't pay, the winning party might take steps to enforce the judgment, such as garnishing wages or seizing assets.

Where is the Motion for Summary Judgment Filed In New York?

A motion for summary judgment can be filed in any New York state court, including the Supreme Court, County Court, and Civil Court. The motion must be filed after issue has been joined but before the case is scheduled for trial.

Importance of Jurisdiction and Venue

In the legal world, the terms "jurisdiction" and "venue" are often used interchangeably by those unfamiliar with their nuances. However, they serve distinct and crucial roles in the litigation process. Understanding their importance can be pivotal to the outcome of a case.

1. Jurisdiction - The Court's Authority:
   • Definition: Jurisdiction refers to a court's authority to hear and decide a particular case. It ensures that a court has both legal and geographical authority over the subject matter and the parties involved.
   • Types of Jurisdiction:
     • Personal Jurisdiction: The court's power over the parties in the lawsuit.
     • Subject Matter Jurisdiction: The court's authority to decide a particular type of case (e.g., a federal court handling federal issues or a family court overseeing divorce proceedings).
   • Significance: Without proper jurisdiction, any decision made by a court can be deemed invalid. It's a foundational element that ensures fairness and legitimacy in the legal process.
2. Venue - The Right Location:
   • Definition: Venue pertains to the most appropriate or convenient location for a trial. It's about ensuring the trial occurs in a place connected to the events or parties of the lawsuit.
   • Determining Factors: Venue is typically determined by where the parties reside, where the events leading to the lawsuit took place, or where the property involved in the lawsuit is located.
   • Significance: The venue can influence various aspects of a trial, from the pool of potential jurors to the application of local court rules. An improper venue can be burdensome for parties and witnesses, leading to requests for a change of venue.

Interplay and Implications: While both jurisdiction and venue are separate concepts, they often intertwine. For instance, a court might have jurisdiction over a case but might not be the proper venue. Understanding and strategically considering these aspects can impact a trial's convenience, costs, and even the outcome. Ensuring the case is in the right court, and location for parties involved in litigation is not just a procedural formality but a strategic imperative.

What is Contained in a Motion for Summary Judgment?

A motion for summary judgment is a pivotal moment in the litigation process. It's an assertion that the case, or parts of it, can be decided without a full trial based on the evidence at hand. But how is such a motion presented to the court? Let's delve into the process.

1. Drafting the Motion:
   • Contents: The motion typically includes a statement of the undisputed facts supported by evidence such as affidavits, depositions, and documents. It argues that given these facts, the moving party is entitled to judgment as a matter of law.
   • Legal Basis: The motion should cite relevant statutes, case law, or other legal authorities that support the request for summary judgment.
2. Supporting Documents:
   • Affidavits: Sworn statements by witnesses or parties that provide factual support for the motion.
   • Exhibits: Relevant documents, photographs, or other evidence that bolster the moving party's claims.
   • Memorandum of Law: A detailed legal argument explaining why summary judgment should be granted based on the presented facts and applicable law.
3. Service to the Opposing Party:
   • Once the motion is prepared, it must be served to the opposing party, giving them an opportunity to respond. This ensures fairness and due process.
   • The opposing party can then file opposing affidavits and legal arguments to contest the motion.
4. Oral Argument:
   • Depending on the court's practices and the complexity of the motion, the judge might schedule an oral argument. This allows both parties to present their positions in person and answer any questions the judge might have.
   • Not all motions for summary judgment will have oral arguments; some might be decided based solely on the written submissions.
5. Court's Decision:
   • After reviewing the motion, supporting documents, and any opposition, the court will issue a decision. The motion can be granted (in whole or in part) or denied, or the court might request additional information.
   • If granted, the case or the relevant issues are resolved without a trial. If denied, the case continues to trial.

In essence, presenting a motion for summary judgment is a meticulous process that combines factual evidence with legal arguments. It's a tool that, when used effectively, can streamline the litigation process, saving time and resources and providing clarity on key issues.

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The Process of Filing the Motion for Summary Judgment

Filing a motion for summary judgment is a structured process governed by specific rules. Rule 3212 of the New York Civil Practice Law and Rules (CPLR) provides a detailed framework for this process. Here's a step-by-step breakdown based on the statute:

1. Timing of the Motion (CPLR 3212(a)):
   • Any party can move for summary judgment after the issue has been joined in the action.
   • The court may set a specific date after which no such motion can be made, ensuring it's no earlier than thirty days after filing the note of issue.
   • If the court doesn't set a specific date, the motion must be made no later than one hundred twenty days after filing the note of issue, unless there's good cause shown and the court grants leave.
2. Supporting Proof and Grounds (CPLR 3212(b)):
   • The motion must be supported by an affidavit, a copy of the pleadings, and other available proof like depositions and written admissions.
   • The affidavit should be by someone with knowledge of the facts, recite all material facts, and show there's no defense or that the defense or cause of action has no merit.
   • The motion will be granted if, upon reviewing all submitted materials, the court determines that the cause of action or defense is established sufficiently to warrant judgment in favor of any party.
3. Immediate Trial (CPLR 3212(c)):
   • If the only triable issues relate to the amount or extent of damages, or if the motion is based on specific grounds, the court may order an immediate trial of such issues.
4. Partial Summary Judgment (CPLR 3212(e)):
   • In non-matrimonial actions, summary judgment can be granted for one or more causes of action or part thereof in favor of any party, as warranted.
   • The court can direct that the cause of action for which summary judgment is granted be severed from any remaining cause of action or hold the entry of the summary judgment in abeyance pending the determination of any remaining cause of action.
5. Facts Unavailable to Opposing Party (CPLR 3212(f)):
   • If the opposing party indicates that essential facts to justify opposition may exist but cannot currently be stated, the court may deny the motion, order a continuance, or make any other just order.
6. Limitation of Issues for Trial (CPLR 3212(g)):
   • If the motion is denied or granted in part, the court will specify the facts that are not in dispute or are incontrovertible, which will be deemed established for all purposes in the action.
7. Additional Notice for Consumer Credit Actions (CPLR 3212(j)):
   • When the moving party is a plaintiff and the respondent is a consumer defendant in an action to collect a debt arising from a consumer credit transaction, and the consumer defendant is not represented by an attorney, the plaintiff must provide an additional notice in both English and Spanish. This notice informs the defendant about the motion for summary judgment, how to oppose it, and where to seek legal help.

Understanding and meticulously following the process outlined in CPLR 3212 is crucial. Any missteps can jeopardize the motion's success or even lead to its dismissal.​

Which Documents Should Support a Motion for Summary Judgment?

When moving for summary judgment, it's not just about stating a claim or defense; it's about substantiating it with concrete evidence and adhering to the procedural requirements. Based on our discussions and the provisions of CPLR 3212, here are the key elements and evidence that must be presented:

1. Affidavit with Knowledge of Facts (CPLR 3212(b)):
   • A crucial component of the motion is an affidavit by someone with knowledge of the facts.
   • This affidavit should recite all material facts and demonstrate that there's no valid defense or that the cause of action or defense lacks merit.
2. Supporting Proof (CPLR 3212(b)):
   • A copy of the pleadings in the case.
   • Other available proof can include depositions, written admissions, and any other relevant evidence.
   • Exhibits, such as documents, photographs, or other tangible evidence that supports the motion.
3. Memorandum of Law:
   • A detailed legal argument that outlines why the motion should be granted based on the undisputed facts and the applicable law.
   • This should cite relevant statutes, case law, or other legal authorities that bolster the motion's claims.
4. Expert Affidavits (if applicable):
   • Expert affidavits can be submitted if expert testimony is crucial to the motion.
   • The court will consider these affidavits even if an expert exchange wasn't furnished prior to the affidavit's submission.
5. Additional Notice for Consumer Credit Actions (CPLR 3212(j)):
   • If the motion involves a consumer defendant in a debt collection action arising from a consumer credit transaction, and the defendant isn't represented by an attorney, an additional notice in both English and Spanish must be provided. This notice informs the defendant about the motion, how to oppose it, and where to seek legal help.

Presenting a motion for summary judgment isn't merely a procedural step. It's a comprehensive presentation of facts and legal arguments, supported by concrete evidence, to convince the court that a full trial is unnecessary. Ensuring that all these key elements and evidence are meticulously presented is pivotal to the motion's success.​

The Role of Affidavits and Sworn Statements

In the legal landscape, affidavits and sworn statements play a pivotal role, especially in motions and other pre-trial proceedings. These documents provide a foundation of facts upon which legal arguments are built. Let's delve into their significance and how they function within the context of a motion for summary judgment and beyond.

1. Definition:
   • Affidavit: A written statement confirmed by oath or affirmation, typically used as evidence in court.
   • Sworn Statement: A broader term that encompasses any statement made under oath, including affidavits.
2. Purpose and Importance:
   • Evidentiary Value: Affidavits and sworn statements provide a factual basis for claims or defenses. They serve as evidence, presenting the court with a version of events or facts from a firsthand perspective.
   • Credibility: Since they are made under oath, these statements carry a presumption of truthfulness. False statements can lead to perjury charges, ensuring that individuals provide accurate and honest information.
   • Efficiency: They allow parties to present facts without calling a witness to testify in person, streamlining the pre-trial process.
3. Role in Motions for Summary Judgment:
   • As per CPLR 3212(b), a motion for summary judgment must be supported by an affidavit. This affidavit should be from someone with knowledge of the facts, recite all material facts, and demonstrate the absence of a defense or the lack of merit in a cause of action or defense.
   • The affidavit serves as a foundational document, helping the court determine whether there are genuine disputes of material fact that necessitate a trial.
4. Content and Structure:
   • Firsthand Knowledge: The individual providing the affidavit or sworn statement should only include information they have direct knowledge of.
   • Detailed and Specific: General or vague statements are less persuasive. It's essential to provide specific details and dates when possible.
   • Attachments: Relevant documents or other evidence can be attached as exhibits to the affidavit, with explanations provided within the statement.
5. Challenges and Scrutiny:
   • Opposing parties can challenge the content of an affidavit or sworn statement, questioning its accuracy or the credibility of the individual providing it.
   • Courts will scrutinize these documents, especially when determining whether to grant a motion for summary judgment. Inconsistencies, lack of detail, or statements that contradict other evidence can weaken the impact of an affidavit.

In conclusion, affidavits and sworn statements are more than just paperwork; they are foundational tools in the litigation process. They provide courts with a clear picture of the facts, influence legal strategies, and can significantly impact the outcome of motions and trials.

Sample Affidavit of Facts in Support of Bank's Motion for Summary Judgment

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

ABC Bank,                              INDEX NO. 123456/23

      Plaintiff,

-against-

JANE SMITH,
      Defendant.

AFFIDAVIT IN SUPPORT

State of NEW YORK)
                                       ) SS:
County of NEW YORK )

The undersigned, being duly sworn, deposes and says:

1. I am a representative of JOHN DOE ("Plaintiff") and have access to Plaintiff's records related to the account ("Account") of JANE SMITH. The last four digits of the Account number are 4321.

2. The plaintiff's records were created and maintained in the regular course of business. These records were made at or near the time of the events they describe.

3. The records are kept in the systematic conduct of the business activity and are regularly conducted by the Plaintiff.

4. The sources of information and the method and circumstances of the preparation of these records are such as to indicate their trustworthiness.

5. It is a regular practice of the Plaintiff's business to make such records.

6. The business records are not created in anticipation of litigation.

7. These records have been maintained in a secure environment with restricted access to ensure their integrity.

8. The record was kept in the course of a regularly conducted business activity, and making the record was a regular practice of that activity.

9. As of the date of this affidavit, Defendant owes $5,000 to the Account. No additional fees or charges have been added.

10. There is a chain of custody for the records, which ensures that they have not been altered or tampered with since their creation.

11. I have been trained and am competent to manage and maintain these business records, ensuring their accuracy and reliability.

WHEREFORE, Plaintiff demands a judgment against Defendant for $5,000 plus any associated court costs.

This statement is accurate to the best of my knowledge.

Signature of Affiant
Date

NOTARY PUBLIC

JOHN NOTARY
Notary Public, State of New York
My Commission Expires: Dec. 31, 2025

CERTIFICATE OF CONFORMITY

I, JOHN LAWYER, an attorney in the State of New York, confirm that the above acknowledgment was taken in accordance with the laws of the State of New York.

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Defenses for Consumers

When faced with a motion for summary judgment, especially in cases involving consumer rights, it's crucial for defendants to understand the array of defenses available to them. These defenses can halt the motion in its tracks, ensuring that the consumer's rights are protected and that they get their day in court. Here's a breakdown of some key defenses:

a. Genuine Dispute of Material Fact:

• • Importance of Material Facts: In the context of a motion for summary judgment, material facts are those that can influence the outcome of the case. They are central to the claims or defenses presented.
  • Defense Mechanism: If there's a genuine dispute over any material fact, summary judgment is typically inappropriate. The court recognizes that such disputes should be resolved through a full trial, where evidence can be presented and witnesses cross-examined.

b. Inadequate Documentation:

• For a plaintiff to succeed in a motion for summary judgment, they must provide clear and convincing evidence supporting their claims.
• If the plaintiff fails to produce adequate documentation or evidence, the defendant can argue against the motion on these grounds. This is especially relevant in debt collection cases, where the plaintiff must prove the existence and amount of the debt.

c. Statute of Limitations:

• Legal claims aren't timeless. They must be brought within a specific period, as defined by the statute of limitations.
• If the plaintiff files a claim after this period has expired, the defendant can use the statute of limitations as a defense, potentially leading to the dismissal of the claim.

d. Contractual Defenses:

• Unconscionability: A contract or a specific term might be deemed unconscionable if it's excessively one-sided or oppressive.
• Misrepresentation: If a party was induced into a contract based on false statements or promises, they might have a defense based on misrepresentation.
• Breach of Contract: If the plaintiff breached the contract first, it could serve as a defense against their claims.

e. Procedural Defenses:

• Legal proceedings are governed by specific rules and procedures. If the plaintiff fails to adhere to these, such as errors in the filing process or improper service of process, the defendant can raise these procedural issues as a defense.

In essence, consumers have a robust set of defenses at their disposal when faced with legal actions. By understanding and effectively leveraging these defenses, they can ensure their rights are upheld and that they are treated fairly within the legal system.​

The Outcome of a Motion for Summary Judgment

A motion for summary judgment is a critical juncture in the litigation process. It seeks a resolution of the case (or specific issues within it) without needing a full trial. But what are the potential outcomes of such a motion, and what do they mean for the parties involved? Let's explore:

1. Granted in Full:
   • If the court finds that there are no genuine disputes of material fact and that the moving party is entitled to judgment as a matter of law, the motion can be granted in its entirety.
   • This means that the case (or the specific issues addressed by the motion) is resolved in favor of the moving party without proceeding to trial.
2. Denied:
   • If the court determines that there are genuine disputes of material fact or that the moving party is not entitled to judgment as a matter of law, the motion will be denied.
   • This outcome means that the case will continue towards trial or other stages of litigation.
3. Granted in Part:
   • Sometimes, a motion for summary judgment addresses multiple issues or claims. The court might find some of these suitable for summary judgment while others are not.
   • In such cases, the motion can be granted in part, resolving some issues while leaving others for trial.
4. Immediate Trial on Specific Issues (CPLR 3212(c)):
   • If the court identifies that the only triable issues relate to the amount or extent of damages or if the motion is based on specific grounds, the court might order an immediate trial on those issues.
   • This can expedite the resolution of the case by focusing on the core disputed matters.
5. Establishment of Undisputed Facts (CPLR 3212(g)):
   • If the motion is denied or granted in part, the court may specify which facts are not in dispute or are incontrovertible.
   • These facts are then deemed established for the remainder of the litigation, streamlining the issues to be addressed in any subsequent trial.
6. Potential for Cross-Motion:
   • In some instances, the non-moving party might believe they are entitled to summary judgment. Even if they didn't initially file a motion, the court can grant such judgment in their favor without the need for a cross-motion, provided the grounds are clear from the materials presented.
7. Implications for the Parties:
   • The outcome of a motion for summary judgment can significantly impact the trajectory of a case. A granted motion can bring swift resolution, while a denied motion can set the stage for a more prolonged legal battle.
   • Regardless of the outcome, parties should be prepared to adjust their strategies and consider potential next steps, whether that's gearing up for trial, considering settlement, or exploring other legal avenues.

How Consumers Are Empowered by Knowledge of Legal Procedure

Understanding legal procedures is not just a matter of academic interest; it's a practical necessity for anyone who wishes to navigate the legal system effectively.

1. Empowerment: Knowledge is power. When consumers understand the legal procedures, they are better equipped to assert their rights and make informed decisions. This empowerment can be the difference between feeling overwhelmed by a legal situation and confidently addressing it.
2. Protection: Legal procedures, like the motion for summary judgment, can significantly impact the outcome of a case. By understanding these procedures, consumers can better protect their interests and ensure that parties with more legal expertise do not take advantage of them.
3. Cost Savings: Legal disputes can be expensive. However, being informed about the processes can help consumers make cost-effective decisions, whether it's deciding to settle a case, challenge a motion, or seek specific legal remedies.
4. Peace of Mind: The legal system can be intimidating. But with a clear understanding of what to expect, consumers can reduce anxiety and uncertainty. Knowing the steps and potential outcomes can provide a sense of control in what often feels like a chaotic environment.

In essence, the legal world can seem like a maze, but with a map in hand – in this case, knowledge of legal procedures – consumers can navigate it more easily and confidently.

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Admissibility of Evidence: Summary of Key Holdings from New York Case Law on Summary Judgment

1. Evidence about a dentist's routine procedure for administering anesthesia was admissible in a dental malpractice action due to the frequency and consistency of its use. Rivera v. Anilesh, 8 N.Y.3d 627 (2007).

2. The mortgagee's assignee failed to provide evidence of the mortgagor's default in an admissible form in a mortgage foreclosure action. Fulton Holding Group, LLC v. Lindoff, 165 A.D.3d 1045 (2018).

3. Genuine issues existed about whether a father's actions caused his child's distress, preventing summary judgment in a child custody case. Kenneth J. v. Lesley B., 165 A.D.3d 439 (2018).

4. An affirmation from attorneys' counsel was valid for submitting evidentiary proof in a legal malpractice case. Aur v. Manhattan Greenpoint Ltd., 132 A.D.3d 595 (2015).

5. In a scaffold law claim, an unsigned but certified deposition transcript was admissible for summary judgment. Vetrano v. J. Kokolakis Contracting, Inc., 100 A.D.3d 984 (2012).

6. An uncertified autopsy report was inadmissible for summary judgment in a wrongful death case. Eberts v. Makarczuk, 52 A.D.3d 772 (2008).

7. A letter about lift rods was admissible as a business record in a products liability action. Reyes v. Harding Steel, Inc., 50 A.D.3d 427 (2008).

8. A transcript was admissible for summary judgment, even if the certification page was initially omitted. Felberbaum v. Weinberger, 40 A.D.3d 808 (2007).

9. Courts should not rely on judicial findings as evidence for summary judgment. Veloz v. Refika Realty Co., 38 A.D.3d 299 (2007).

10. For summary judgment, materiality is typically a jury question, and insurance company employees' statements alone can't establish materiality. Christophersen v. Allstate Ins. Co., 34 A.D.3d 515 (2006).

11. Verified bill of particulars can be considered in opposition to a motion for summary judgment. Johnson v. Peconic Diner, 31 A.D.3d 387 (2006).

12. Terms of a prior contract were inadmissible to establish indemnity in a breach of contract action due to a merger clause in the current contract. McNamee Const. Corp. v. City of New Rochelle, 29 A.D.3d 544 (2006).

13. For summary judgment, evidentiary facts must be presented, but they don't necessarily need to be in trial form. State v. Metz, 241 A.D.2d 192 (1998).

14. A party seeking summary judgment must provide evidentiary proof in admissible form. LaGrega v. Farrell Lines, Inc., 156 A.D.2d 205 (1989).

15. Rules of evidence should be applied cautiously in summary judgment applications. Todd Equipment Leasing Co., Inc. v. Pierce Trading Corp., 63 A.D.2d 1018 (1978).

16. Prior summary judgment orders aren't adjudications on merits and don't establish particular facts. Progressive Orthopedics, PLLC v. Hertz Corp., 56 Misc.3d 70 (2017).

17. For summary judgment, the movant must provide evidentiary proof in admissible form. Lewis Family Farm, Inc. v. Adirondack Park Agency, 22 Misc.3d 568 (2008).

18. Courts can consider evidence attached to reply affirmations for summary judgment. Rivera v. Rite Lite Ltd., 13 Misc.3d 1142 (2006).

19. For summary judgment, full and clear material information on disputed points should be presented in the moving papers, not in the reply. Christian v. Al's Auto Exp. Corp., 34 Misc.2d 756 (1962).

20. The same quality of evidence is needed for summary judgment as would be required at trial. Bern Contracting Corp. v. Shelton 525 Lexington Corp., 199 N.Y.S.2d 863 (1960).

Legal Burden for Summary Judgment: Summary of Key Holdings from New York Case Law

1. Summary Judgment is a special remedy that should be granted only where the movant has demonstrated that no triable issues of material fact exist. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986).

2. Where a movant fails to satisfy their burden of establishing their entitlement to summary judgment by submitting sufficient evidence to demonstrate the absence of material issues of fact, the motion must be denied regardless of the adequacy of the papers submitted in opposition to the motion. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986).

3. The role of a Court hearing a motion for summary judgment involves only issue finding, not issue determination. Menzel v. Plotnick, 202 A.D.2d 558, 559, 610 N.Y.S.2d 50 (2d Dep’t 1994).

4. It is not the function of the Court to resolve issues of credibility. Ferrente v. American Lung Association, 90 N.Y. 2d 623, 631, 665 N.Y.S.2d 25 (1997).

5. The motion papers should be scrutinized carefully in the light most favorable to the party opposing the motion, and the decision must be made based on the version of facts most favorable to that party. Menzel, 202 A.D.2d at 559; Byrnes 175 A.D.2d at 787.

6. The evidence submitted by the opposing party and any evidence to the movant that favors the opposing party must be accepted as true. O’Sullivan v. Presbyterian Hospital, 217 A.D.2d 98, 100-01, 634 N.Y.S.2d 101 (1st Dep’t 1995).

7. In short, it is not the function of the Court to engage in the weighing of evidence, but to determine whether there is any rational process by which the trier of facts could find for the non-moving party; if so, the motion should be denied. Jastrzebski v. North Shore School District, 223 A.D.2d 677, 678, 637 N.Y.S.2d 439 (2d Dep’t 1996).

8. It is well-settled that Plaintiff cannot establish its prima facie burden on a motion for summary judgment based upon a conclusory affidavit. JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373, 384-385, 795 N.Y.S.2d 502 (2005) (holding that “[a] conclusory affidavit or an affidavit of an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden.”).

Credit Card Company Prevails in Collection Action: Business Records and Standing Requirements Met for Summary Judgment

A credit card company successfully obtained summary judgment against a cardholder who accumulated $9,024.54 in debt and ceased making payments. The court found that the credit card statements qualified as admissible business records and the company established standing through a certificate of merger with the original card issuer.

Key Legal Principles:

1. Credit card statements qualify as business records when introduced with an affirmation from someone with personal knowledge of business practices
2. National banking institutions are not required to register to do business in New York to bring collection actions
3. New York's usury laws do not apply to national banking institutions not located within the state

Conclusion: The case demonstrates that credit card companies can obtain summary judgment in collection actions by providing proper documentation of the debt and establishing their standing through merger certificates, while technical defects in affidavits may be remedied without fatal consequences to the action.

Citation: Bank of America, N.A. v Neroni, 226 AD3d 1273 (3d Dept 2024).

Business Records Exception Allows Loan Assignee's Summary Judgment Victory: Incorporation of Prior Records Sufficient

A loan assignee who purchased a defaulted $8,000 loan as part of a pool of accounts successfully obtained summary judgment by demonstrating proper incorporation of the original lender's records into its own business records. The compliance associate's affidavit established that the records were routinely relied upon after purchase, even without personal knowledge of how the original records were maintained.

Key Legal Principles:

1. A party satisfies prima facie burden for summary judgment in loan default cases by proving the obligation and default
2. Business records from other entities are admissible if recipient incorporates them into its own records and routinely relies on them
3. Affiant need not have personal knowledge of original record-keeper's practices if records are properly incorporated into recipient's business

Conclusion: The case establishes that assignees can rely on prior loan servicer's records to prove their cases if they properly incorporate those records into their own business practices, even without direct knowledge of how the original records were maintained.

Citation: Velocity Invs., LLC v Lymon, 218 AD3d 1091, 194 NYS3d 588 (3d Dept 2023) (affirming summary judgment where assignee's compliance associate established records were incorporated into assignee's business records and relied upon in regular course of business).

Credit Card Company's Summary Judgment Denied Due to Disputed Charges and Insufficient Evidence of Account Stated

A credit card issuer sued to recover approximately $24,000 in outstanding credit card debt. The bank initially won summary judgment but lost on appeal. The bank failed to prove account stated because it didn't show the cardholder retained statements without objection. While the bank made a prima facie case for breach of contract, the cardholder raised triable issues by providing evidence of disputed charges and possible identity confusion with a similarly named person.

Key Legal Principles:

1. An account stated requires agreement between parties based on prior transactions regarding account items and balance due
2. Agreement to account stated can be implied through retention of bills without objection or partial payment
3. For breach of contract in credit card cases, acceptance can be shown through card use and payments made

Conclusion: Summary judgment is inappropriate in credit card collection cases where cardholders present evidence of specific disputed charges and identity confusion, even if the credit card company establishes basic contract elements.

Citation: Citibank (South Dakota), N.A. v Brown-Serulovic, 97 AD3d 522 (2d Dept 2012).

Credit Card Issuer Wins Summary Judgment After Proving Regular Statement Mailings and Cardholder's Partial Payments

A credit card company successfully obtained summary judgment for approximately $29,500 in unpaid credit card debt. The issuer proved it regularly mailed monthly statements to the cardholder and that the cardholder made partial payments while retaining statements without objection. The court found this evidence sufficient to establish both breach of contract and account stated claims, and the cardholder failed to raise any triable issues of fact in response.

Key Legal Principles:

1. Credit card agreement is formed when cardholder uses the card and makes payments
2. Account stated can be proven by showing regular mailing of statements, retention without objection, and partial payments
3. Once creditor establishes prima facie case, cardholder must raise specific triable issues to defeat summary judgment

Conclusion: Credit card issuers can prevail on summary judgment by demonstrating systematic statement mailings and cardholder's pattern of payments, absent specific factual disputes raised by the cardholder.

Citation: Citibank (South Dakota), N.A. v Keskin, 121 AD3d 635 (2d Dept 2014).

Bank Prevails on Summary Judgment Despite Absence of Signed Credit Card Agreement; FDCPA Claims Against Original Creditor Dismissed

A bank won summary judgment for approximately $6,200 in credit card debt after its records custodian provided an affidavit detailing account records and payment history. The court rejected the cardholder's counterclaim under the Fair Debt Collection Practices Act (FDCPA), holding that the Act doesn't apply to original creditors collecting their own debts. The court found card usage and partial payments sufficient to establish the agreement even without a signed contract.

Key Legal Principles:

1. Credit card agreements can be established through card usage and payments even without a signed agreement
2. The FDCPA does not apply to original creditors collecting their own debts
3. A records custodian's affidavit can establish business records admissibility for credit card statements and account documents

Conclusion: Banks can prevail in credit card collection actions through proper business records authentication and proof of card usage, while avoiding FDCPA liability when collecting their own debts directly.

Citation: Bank of America, N.A. v Diamante, 75 Misc 3d 142(A) (App Term, 2d Dept 2022).

Capital One Bank Wins Summary Judgment Despite Challenge to Non-Employee Affidavit's Sufficiency

Capital One Bank obtained summary judgment for approximately $19,948 in credit card debt, with the majority finding sufficient evidence through monthly statements and a legal specialist's affidavit from the bank's billing agent. A strong dissent argued the court improperly granted judgment on an account stated claim not requested in the motion and challenged the sufficiency of an affidavit from a non-employee "legal specialist." The case highlighted tensions between streamlined debt collection practices and evidentiary requirements.

Key Legal Principles:

1. An affidavit from a billing agent's employee can establish business records foundation if the affiant demonstrates familiarity with the creditor's practices
2. Credit card statements can be self-authenticating when they contain sufficient identifying information and transaction details
3. Courts may consider unpled grounds for summary judgment if the moving papers sufficiently alert the opposing party

Conclusion: While courts may accept affidavits from non-employees to authenticate business records in credit card cases, the practice remains controversial, particularly when combined with sua sponte grants of summary judgment on unpled theories.

Citation: Capital One Bank (USA) v Koralik, 51 Misc 3d 74 (App Term, 1st Dept 2016).

Debt Buyer's Employee Can Authenticate Assignor's Affidavit of Sale as Business Record

Portfolio Recovery Associates prevailed at trial in proving its ownership of a credit card debt through an affidavit of sale from the original creditor. The court held that the debt buyer's employee could properly authenticate the original creditor's affidavit of sale as a business record, even without a special relationship between the companies. The cardholder's admission of card use and self-authenticating account statements helped establish the underlying debt.

Key Legal Principles:

1. A debt buyer's employee can authenticate an original creditor's affidavit of sale if the company regularly relies on such documents
2. Credit card statements can be self-authenticating when they contain sufficient account details
3. A cardholder's testimony of card use can help establish the underlying debt obligation

Conclusion: Debt buyers can prove chain of ownership through business records testimony from their own employees about assignment documents, without requiring testimony from the original creditor.

Citation: Portfolio Recovery Assoc., LLC v Lall, 127 AD3d 576 (1st Dept 2015).

Assignee of Credit Card Debt Fails to Establish Standing Due to Inadequate Proof of Assignment and Notice

A credit card debt assignee sought summary judgment for breach of contract against a cardholder for approximately $1,200. The court denied summary judgment because the assignee failed to establish proper foundation for billing records and did not provide evidence of a complete chain of assignment or notice to the defendant.

Key Legal Principles:

1. Assignees must prove standing by submitting admissible evidence showing a complete chain of assignment from the original creditor
2. Assignees must demonstrate that the specific account was included in the assignment
3. Defendants must receive actual notice of the assignment to be charged with duty to pay the assignee

Conclusion: This case reinforces that debt assignees face a high evidentiary burden when pursuing summary judgment, requiring both proper documentation of the assignment chain and proof that the defendant received notice of the assignment.

Citation: CACH LLC v George, 56 Misc 3d 591 (Dist Ct, Nassau County 2017).

Cases Involving Summary Judgment In Lieu of a Complaint (CPLR § 3213)

Blue Line Drywall & Bldr., Inc. v SAM NJ 44 Stelton, LLC, 78 Misc 3d 1238(A) (Sup Ct, NY County 2023) (holding that CPLR 3213 motion was jurisdictionally defective where return date was set before defendant's statutory time to appear had expired under CPLR 320 and 313; additionally finding service on out-of-state defendant invalid absent showing of personal jurisdiction under CPLR 301 or 302, even where process server delivered papers to authorized agent).

Express Valentine Auto Repair Shop, Inc. v. New York Taxi 2, Inc., 185 A.D.3d 550, 126 N.Y.S.2d 715 (2d Dep't 2020) (holding CPLR 3213 summary judgment in lieu of complaint was unavailable in taxi company sale where promissory note referenced underlying asset purchase agreement and provided buyer right of setoff, since outside proof beyond mere nonpayment would be required to establish prima facie case that note was an instrument for payment of money only, making the accelerated procedure inappropriate)

Counsel Financial II LLC v. Bortnick, 214 A.D.3d 1388, 185 N.Y.S.3d 864 (4th Dep't 2023) (holding CPLR 3213 summary judgment in lieu of complaint was unavailable where lender sought to recover on guaranty as modified by separate offset agreement reducing liability by contingency fees, since determining amount due required substantial extrinsic evidence beyond mere proof of nonpayment, making the accelerated procedure inappropriate)

Conclusion

The motion for summary judgment, as outlined in CPLR 3212, is a pivotal juncture in the litigation process. Three key sections of this rule stand out: the timing of the motion, the necessity for supporting proof through affidavits and other evidence, and the establishment of undisputed facts. These provisions underscore the motion's rigorous evidentiary demands and its potential to expedite or reshape a case's trajectory. For all parties involved, understanding and meticulously adhering to CPLR 3212 is not just about procedure—it's about ensuring a fair and just resolution in the legal arena.

10 Multiple Choice Questions Testing Knowledge of Motions for Summary Judgment in New York

1. What is a motion for summary judgment? a) A trial by jury b) A request for the court to decide the case without a full trial c) A motion to dismiss the case d) A request for a new trial
2. Under which rule are motions for summary judgment governed in New York state courts? a) CPLR 3211 b) CPLR 3212 c) CPLR 3213 d) CPLR 3214
3. What must the moving party show to be granted summary judgment? a) That there are genuine issues of material fact b) That there are no genuine issues of material fact and they are entitled to judgment as a matter of law c) That the opposing party has no evidence to support their case d) That a trial would be too costly and time-consuming
4. What is the difference between jurisdiction and venue? a) There is no difference; the terms are interchangeable b) Jurisdiction refers to the location of the court, while venue refers to the court's authority to hear the case c) Jurisdiction refers to the court's authority to hear the case, while venue refers to the appropriate location for the trial d) Jurisdiction and venue are both determined solely by where the plaintiff files the case
5. What is the purpose of the supporting affidavit in a motion for summary judgment? a) To provide the court with background information about the case b) To explain why the opposing party's arguments are invalid c) To recite all material facts and show there is no defense or the defense has no merit d) To request a hearing on the motion
6. If the motion for summary judgment is granted, what happens? a) The case proceeds to trial b) The case is decided in favor of the moving party without a trial c) The case is dismissed d) The parties are ordered to mediation
7. Under CPLR 3212(g), if a motion for summary judgment is denied or granted in part, what can the court do? a) Order an immediate trial on the remaining issues b) Dismiss the case c) Specify the facts that are not in dispute and deem them established for all purposes in the action d) Order the parties to mediation on the remaining issues
8. What role do affidavits and sworn statements play in motions for summary judgment? a) They are not admissible as evidence b) They provide a factual basis for the motion and serve as evidence c) They are only used to support the moving party's arguments d) They are only used to oppose the motion
9. What is the standard for admissibility of evidence submitted in support of a motion for summary judgment? a) The evidence must be in its final trial form b) The evidence must be in admissible form, but doesn't necessarily need to be in the form required at trial c) Any evidence can be submitted, admissible or not d) No evidence can be submitted with the motion
10. What is the court's role in deciding a motion for summary judgment? a) To resolve issues of credibility and weigh the evidence b) To only engage in issue finding, not issue determination c) To accept the moving party's evidence as true d) To order the parties to settle the case out of court

Answer Key:

1. b
2. b
3. b
4. c
5. c
6. b
7. c
8. b
9. b
10. b