HOW DO I WIN OR DEFEAT A MOTION FOR SUMMARY JUDGMENT?

In litigation in state and federal courts in New York, a party may file a motion for summary judgment  to request judgment without trial. The actual motion is a set of papers comprised of a notice of motion which identifies the relief being sought and the grounds for the relief, affidavits in support from witnesses who have personal knowledge of the facts, exhibits, which would include documents that are attached to and mentioned in the affidavits, and affirmation from an attorney, and a memorandum of law which is a legal brief that explains the applicable legal standards under case law and statutes.  Litigation over summary judgment motions is quite common. If a party files such a motion, the other party may submit opposing papers which would be comprised of affidavits, exhibits, and affirmation, and a brief as well.  The party opposing a motion for summary judgment typically tries to show that there are material disputed facts or that the law requires a decision in their favor based on the material undisputed facts.

The standards governing a motion for summary judgment are well-known. The moving party must establish that there are no material disputed facts that would require discovery or a trial and that the legal issues can be determined as a matter of law.  In State Court, this is codified under CPLR Section  3212.In Federal Court, this is codified under Rule 56 of the Federal Rules Of Civil Procedure.

Here is an excerpt from one of our briefs filed in the Supreme Court, which is the state court in New York:

When a court reviews a motion for summary judgment, it must determine whether the moving party met its burden of establishing “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the moving party fails to establish a prima facie showing, the Court must deny the motion. Id. The moving party has a high burden because the facts must be viewed in the light most favorable to the nonmoving party. Gradwohl v. Stop and Shop Supermarket Co., LLC, 70 A.D.3d 634 (2d Dept. 2010). “On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact.” S. J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 (1974). As is often said of the motion, issue finding rather than issue determination is its function. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1957).

This excerpt was from a brief filed with the court in 2015. Readers of this website should not rely on this without hiring legal counsel to assist. The laws can change or vary over time.  Summary judgment motions can be quite complex, as they involve what is essentially a trial of the entire case all on paper. Litigation counsel should analyze the issues thoroughly and  research any applicable laws on Westlaw or Lexis when drafting a brief. There is quite a difference between the quality of briefs that are submitted by lawyers who have experience and those who don’t. Another aspect of summary judgment practice involves oral argument. Many judges require the attorney to appear in court on a motion calendar date to argue the motion orally which would include rebutting your adversaries arguments. Successful summary judgment motions require in-depth analysis of the legal issues and evidence, writing a quality brief that is grammatically correct and persuasive, and oral advocacy before the judge.