Motion for Summary Judgment Flashcards
What is the standard for granting a summary judgment motion?
There are no genuine issues of material fact - so a trial is not required and the moving party is entitled to judgment as a matter of law.
When can parties make a motion for summary judgment?
After service of the answer, either party can make a motion for summary judgment. After filing a note of issue, the party must move within 120 days (judge can extend for good cause).
What evidence can the moving party use to support a motion for summary judgment?
Affidavits, discovery materials, and any other relevant document.
How can an opposing party defeat a motion for summary judgment?
By producing evidence contrary to the evidence of the moving party - to show that there is a genuine issue of material fact.
What does searching the record mean?
It means the judge will review all the evidence in the record to decide a summary judgment motion.
Must the judge either grant summary judgment to the moving party or dismiss?
No - the judge can grant summary judgment in favor of either party (even the opponent of the motion!).
What is the effect of a denial of summary judgment?
The case will go on to trial - there is no winner yet.
Can a judge grant partial summary judgment?
Yes - if the judge can determine which party is at fault, but thinks that damages should be decided by a jury, the case will proceed to a jury on the issue of damages only.
If a party files a motion to dismiss for failure to state a cause of action, can the court convert that into a motion for summary judgment?
Yes - the judge can, in effect, turn a motion for dismissal not on the merits into a motion to dismiss on the merits.
What are the prerequisites that would enable a judge to convert a motion to dismiss for failure to state a cause of action into a motion for summary judgment?
- At least one party has submitted factual affidavits in connection with the motion, and
- the judge gives both parties an opportunity to submit more evidence.
When can a plaintiff bring a motion for summary judgment instead of a complaint?
Only where there is a legally operative document that make a prima facie case that P is entitled to relief based on the document alone (e.g. promissory note, out-of-state judgment entitled to full faith and credit, etc.)
Can a plaintiff bring a motion for summary judgment instead of a complaint on a breach of contract claim?
No - a contract, while a legally operative document, will not prove the plaintiff’s complaint on its face.
What must P do before filing a motion for summary judgment in lieu of a complaint?
Serve D with advance notice that is at least equal to D’s time to respond to a normal action.
(I.e. personal service in NY = 20 days response time, other types of service = 30 days response time)
