Summary Judgment Motions In New York And CPLR §3212
Appeals Of Summary Judgments
Appealing Your Case When Summary Judgment Has Been Granted
When appealing a lower court decision and order granting summary judgment in a New York Civil Court (usually Supreme Court) the party/attorney executing the appeal must be careful to include all the appropriate lower court records in the submission to the appellate court.
One of the methods of appeal in this situation is the “Appendix Method”, which can be very effective if used correctly. This method allows a party to assemble the pertinent part of the record for submission to the appellate court by putting together a separately bound volume, in addition to the brief, called an Appendix.
There are various rules governing the submission of an Appendix to one of the Appellate Divisions and one must be familiar with the rules governing such a submission in all four of the Appellate Division’s Departments in New York.
The use of this method can be very effective in appealing an order and decision granting a summary judgment motion or any situation where there has not been a trial and the record is limited to a specific issue. This method can effectively draw the Appellate Court’s attention to the facts and law specific to the issue you are appealing.
Great care must be taken to include all of the documents that are necessary for the appellate court to decide the legal issue being appealed. Below is the statute governing the rules of summary judgment motions and various notes that will help the reader with some of the more common issues in this area.
In Civil cases only it is possible to have a case decided on a Motion for Summary Judgment. A Summary Judgment decision may be partial (i.e. with regard to only certain issues in the case) or with regard to the entire case.
In New York the rules for summary judgment motions are found in the Civil Practice Law and Rules §3212.
The statute CPLR §3212 is as follows:
(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.
NOTE: Generally, motions for summary judgment must be made within 120 days after the filing of the note of issue, but the court may not require that it be less than 30 days after the filing of the note of issue. Being aware of these time constraints is extremely important as many motions for summary judgment are denied because they are made more than 120 after the filing of the note of issue.However, where good cause is shown the movant (party applying for summary judgment) can request more time from the court to make the motion.
Additionally, the parties can agree or the court can order that any motions for summary judgment be made in less than the 120 day time constraint and this will be just as binding on the parties. Corchado v. City of New York, 64 A.D.3d 429 (1st Dept. 2009) and Glass v. Abramovitz, 37 A.D.3d 194 (1st Dept. 2007).
If one of the parties is late in making the motion, then the defense that the motion is late must be raised in opposing papers and objecting orally to the lateness is not sufficient to preserve the issue for appellate review. See Alexandridis v. Sued Night Club, N.Y. Law Journal Oct. 4, 2007, p.26, col.1 (Sup.Ct., N.Y. County).
The Standard for “good cause” when making a motion for summary judgment beyond the 120 day time limitation is found in the case of Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004). In that case the Court of Appeals concluded that good cause under CPLR §3212 requires a showing of good cause for the delay in making the motion – a satisfactory explanation for the untimeliness - rather than simply permitting meritorious, non-prejudicial filings, however tardy. No excuse at all, or a perfunctory excuse, cannot be good cause.
With regard to cross-motions made for summary judgments and their timeliness, presently there is no definitive law coming from the Court of Appeals on this issue. For example, where a plaintiff makes a summary judgment motion in just under the 120 days and then defendant cross-moves in response to that motion and the cross-motion is over the 120 day time limitation, the rule SEEMS to be that if the cross-motion for summary judgment is related to the opposing sides motion for summary judgment then the timeliness is not an issue; however, if the issue raised in cross-motion is unrelated to the opposing sides summary judgment motion issues then it will be deemed untimely. This was held in Filannino v. Triborough Bridge etc., 34 A.D.3d 280 (1st Dept. 2006).
(b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
NOTE: a party moving for summary judgment must make a showing that there is no genuine issue of fact in the case and that the movant is entitled to judgment as a matter of law. The opponent’s default does not automatically entitle the movant to summary judgment.
(c) Immediate trial. If it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages, or if the motion is based on any of the grounds enumerated in subdivision (a) or (b) of rule 3211, the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion, before a referee, before the court, or before the court and a jury, whichever may be proper.
(d) Repealed.
(e) Partial summary judgment; severance. In a matrimonial action summary judgment may not be granted in favor of the non-moving party. In any other action summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just. The court may also direct:
1. that the cause of action as to which summary judgment is granted shall be severed from any remaining cause of action; or
2. that the entry of the summary judgment shall be held in abeyance pending the determination of any remaining cause of action.
(f) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.
(g) Limitation of issues of fact for trial. If a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action. The court may make any order as may aid in the disposition of the action.
(h) Standards for summary judgment in certain cases involving public petition and participation. A motion for summary judgment, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation, as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the action, claim, cross claim or counterclaim has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion.
(i) Standards for summary judgment in certain cases involving licensed architects, engineers, land surveyors or landscape architects. A motion for summary judgment, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action in which a notice of claim must be served on a licensed architect, engineer, land surveyor or landscape architect pursuant to the provisions of subdivision one of section two hundred fourteen of this chapter, shall be granted unless the party responding to the motion demonstrates that a substantial basis in fact and in law exists to believe that the performance, conduct or omission complained of such licensed architect, engineer, land surveyor or landscape architect or such firm as set forth in the notice of claim was negligent and that such performance, conduct or omission was a proximate cause of personal injury, wrongful death or property damage complained of by the claimant or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant a preference in the hearing of such motion.
N.Y. C.P.L.R. 3212 (McKinney)
If your case has been dismissed as a result of a motion for summary judgment, or even where there is a partial summary judgment and your case is continuing in the lower court, it is necessary to contact an appellate attorney right away to protect your rights and begin the appellate process.
If you are an attorney and in the midst of a case and seek to have a partial summary judgment decision reversed it is important to begin the appeal as soon as possible, to halt any further progress on the case and to protect your client’s rights.
I have worked with many attorneys on these types of cases and, in fact, the majority of my clients are other attorneys. I invite attorneys to contact me so that we can arrange some mutually agreeable plan of action for your case.