![]() ![]() ![]() The Appellate Division will, however, consider alternative grounds for affirmance even if the trial court did not rely on those grounds, so long as they were raised, i.e., preserved before the trial court ( see e.g., Arista Dev., LLC v Clearmind Holdings, LLC, 207 AD3d 1127, 1129 Lots 4 Less Stores, Inc. Consequently, if your motion was granted or your opponent's was denied under the old rule, the Appellate Division will not affirm on that basis. In view of the foregoing, it is unlikely that an Appellate Court will apply and interpret the old rule as written. This interpretation of the “old” rule is in line with the plain language of the “new” rule. In any event, the Third Department held that, despite the mandatory language included in the original version of §202.8-g (“shall”), the trial courts still had the discretion (“may”) to deem facts admitted based on, among other things, a party’s failure to follow the procedures of §202.8-g ( see id. Interestingly, the Third Department issued this decision on July 7, 2022, but made no mention of the amended rule that became effective on July 1, 2022. It is highly unlikely that an Appellate Court will follow the old rule and its strict consequences considering, among other things, that it was only in effect for approximately 18 months.įurthermore, the Appellate Division, Third Department recently addressed the interpretation of the old rule in Leberman v Instantwhip Foods, Inc. Were you successful in opposing a motion for summary judgment because the moving party failed to submit a statement of material facts? Or were you successful in moving for summary judgment because the non-moving party failed to properly respond to your motion and the statement of material facts? If so, and an appeal is pending, be prepared to address whether the Appellate Division should apply the rule as it stood at the time the motion was decided. Similarly, where a party opposing summary judgment has failed to provide a counter statement, the court may adjourn to allow compliance or, after notice and an opportunity to cure, deem the assertion in the statement to be admitted for purposes of the motion, or again some other related action, in its discretion. Where the court has directed a statement of material facts, but the moving party fails to so provide, the court has the discretion to deny the motion without prejudice, permit an adjournment to allow compliance, or some other related action, in its discretion.Such a failure “may” result in an admission for purposes of the motion and A failure to specifically controvert a numbered paragraph in a statement of material facts no longer automatically constitutes an admission. ![]() The statement of material facts is no longer required in all cases, but is limited to the cases in which the court directs.The trial courts now expressly have the discretion to deal with noncompliance. On July 1, 2022, Section 202.8-g was amended to effectively eliminate this fatal consequence. This rule led to some harsh consequences, including a Supreme Court in Clinton County that held that a non-moving party’s failure to comply resulted in an admission of all facts set forth in the moving party’s statement of material facts ( see Reus v ETC Hous. The Uniform Rule further directs that “ach numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party” ( id. In such a case, the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party ( see id. The rule requires that any party moving for summary judgment includes “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried” (22 NYCRR § 202.8-g ). 1, 2021, a new Uniform Rule went into effect for the New York State trial courts addressing summary judgment motions-Section 202.8-g. The Courts Relax the Rules: What Litigants Need to Know About Summary Judgment Now The Courts Relax the Rules: What Litigants Need to Know About Summary Judgment Now. ![]()
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