Motion for Summary Judgment Flashcards
What is a motion for summary judgment?
A PRE-TRIAL MOTION to allow a party (P or D) to make a showing before trial that there is no genuine issue of fact for the trial!
(Party contends that a reasonable person could not differ on the facts and he is entitled to judgment as a matter of law!)
What is the standard for a motion for summary judgment?
There is no genuine issue of material fact requiring trial
Reasonable persons cannot differ on the facts; Party entitled to JMOL
When can you make a motion for summary judgment?
Neither party can move for SJ prior to D’s answer; i.e., the earliest a party can move for SJ is the second after the D’s answer is filed.
The outside time limit for moving for SJ is no later than 120 days from the filing of the Note of Issue (NOI is a paper that puts the case on the court’s trial calendar) UNLESS party can show good cause for the delay
What is the exception to the general rule that a summary judgment motion MUST be brought within 120 days of the filing of the note of issue?
Party may get an extension by showing “good cause” to excuse the 120 days limit
(good cause = procedural excuse, e.g., law office failure or delayed service of discovery docs)
What is the evidentiary standard for a motion for summary judgment?
Moving party has the burden of proving it;
Party may satisfy burden of proof using evidence in the form of (i) affidavits, (ii) relevant documents, and (iii) discovery materials from persons who have actual knowledge of the facts.
(i.e., Party cannot rely on the pleadings!)
How do you defeat a motion for summary judgment?
By producing and presenting contrary evidence showing that a triable issue does exist
(Again, cannot rely on the pleadings!)
What is the “boomerang effect”?
On a motion for summary judgment, the court can grant summary judgment for the non-moving party if the court determines that the evidence is os strong that it justifies it
What is the effect of denial of motion for summary judgment?
Case will proceed to trial
If the only issue left is that of damages, court can order immediate trial on damages and rule on liability prior to that
When is summary judgment permitted PRIOR TO service of the D’s answer? (2 times)
- Conversion of motion for dismiss for failure to state a cause of action
- Motion for SJ in lieu of a complaint
What is required for a conversion of motion to dismiss for failure to state a cause of action?
(D’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 a decision on the basis of evidence rather than on the face of the pleadings) IF:
- At least one party submits affidavits with answer; AND
- Court gives notice to the parties of the conversion, to provide the opportunity to submit additional evidence
What is motion for summary judgment in lieu of a complaint?
P may move for SJ at the same time he serves process by accompanying the summons with motion papers for SJ (i.e., the motion is served “in lieu of the complaint”) IF:
- The action is on an instrument for payment on money owed ONLY (e.g., P is suing on a promissory note; contract not sufficient); OR
- The action is on an out-of-state judgment
What is the procedure for summary judgment in lieu of a complaint?
Summons and notice of motion for summary judgment
IF Personal delivery – 20 days for return date
IF Other type of delivery – 30 days for return date after service is complete
