SUMMARY JUDGMENT UNDER CPLR 3212 AND THE DECISIONAL PRINCIPLES IMPLEMENTING THAT STATUTE

Introduction

The question posed by a summary judgment motion is not whether plaintiff can ultimately establish liability (Barr v County of Albany, 50 NY2d 247, 254; Cromme v Pioneer Homes, 216 AD2d 714, 715) but whether any genuine material fact issue exists. As courts often state, the judge's function is issue-finding, not issue-determination (Guzman v Haven Plaza House Dev. Fund Co., 69 NY2d 559, 565). This rule applies both at the lower court and the appellate level.

The CPLR provides that a summary judgment "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"(CPLR 3212[b]). The statute means what it says in referring to "any" party; judgment can be granted in favor of the moving party, either plaintiff or defendant (Hagins v State of New York, 81 NY2d 921; Olan v Farrell Lines, Inc., 64 NY2d 1092); the opposing party on its cross-motion (Smith v New York State Elec. & Gas Corp., 82 NY2d 781) or even without a cross-motion when the court "searches the record" (Merritt Hill Vineyards v Windy Heights Vineyards, supra, 61 NY2d at 110- 112); the defendant on a counterclaim (Morris v Snappy Car Rental, supra ) or cross-claim (Rue v Stokes, 191 AD2d 245, 246-7; Cooney v Osgood Mach. Inc., 179 AD2d 240, 244) or an impleaded party (Signorile v Lefrak-SBN Assocs., 216 AD2d 133; Ruotolo v Ambu-Wagon, Inc., supra, 206 AD2d 416).

On the other hand, "the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact"; such issues require a plenary trial (CPLR 3212[b]; Lescovich v 180 Madison Ave. Group, 81 NY2d 982, 985).

A summary judgment motion, while the "procedural equivalent of a trial" (Andre v Pomeroy, 35 NY2d 362; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341), deprives a party of rights ordinarily attendant upon a plenary trial such as confrontation of witnesses and cross-examination (Terranova v Emil, 20 NY2d 493, 497; Carlos v Rochester Gen. Hosp., 163 AD2d 894). For this reason, among others, summary judgment is deemed a "harsh and drastic remedy" to be "sparingly exercised" (Alvord & Swift v Muller Constr. Co., Inc., 46 NY2d 276, 287; Manufacturers & Traders Trust Co. v Bittorf, 216 AD2d 72, 73), and the movant must comply strictly with a host of statutory and decisional requirements (Bakerian v Horn, 21 AD2d 714).

These rules may be implicit in the CPLR but are not always self-evident, and my court sees few motion terms pass without a summary judgment motion or opposition that neglects one or more of these rules, often to the party's disadvantage. Practitioners clearly need a straightforward guide to the procedures and pitfalls of summary judgment. This article attempts to meet that need, structuring the discussion according to the phases of summary judgment procedure.

Bringing the Motion

CPLR 3212[a] permits a summary judgment motion to be made by any party in any action, but only after joinder of issue. Like any other motion, one for summary judgment is subject to the CPLR's time limits (CPLR 2214, 2215) and provisions such as CPLR 2215's requirement that notices of cross-motion be served (Saba v Utica Farm Ins. Co., 176 AD2d 1212). In addition, CPLR 3212[b] sets out the requisite proof (Bush v St. Clare's Hosp., 82 NY2d 738; Zuckerman v City of New York, 49 NY2d 557). Untimely service of the motion papers, answering papers or reply papers does not require rejection of the tardy papers, since it is always within the discretion of the court to accept them when no one has been prejudiced by the late service (CPLR 2004), even if the motion is made on the eve of trial or during trial (Kule Resources v Reliance Group, 49 NY2d 587, 591; 676 R.S.D. Inc. v Scandia Realty, 195 AD2d 387).

The prohibition against a pre-joinder summary judgment motion is "strictly adhered to" (City of Rochester v Chiarella, 65 NY2d 92, 101; Cox v J.D. Realty Assocs., 217 AD2d 179, 184); however, the court may convert a CPLR 3211 motion to dismiss made before joinder to one for summary judgment (i) when the court has given the parties adequate notice and an opportunity to present evidence (CPLR 3211[c]; Mihlovan v Grozavu, 72 NY2d 506, 508) or (ii) when there has been no such notice but the parties themselves have intentionally charted a summary judgment course (TST/Impreso, Inc. v. Cosmos Forms, Ltd., 202 AD2d 493, 494).

The motion should not be made until it is ripe for adjudication, since "[i]t is only in exceptional cases that a plaintiff's right to present his claims to a court of law should be cut off by a premature motion for summary judgment" (Alvord & Swift v Muller Constr. Co., Inc., supra, 46 NY2d at 287). One made prior to any discovery, or when further discovery is needed because crucial facts are peculiarly within movant's knowledge, is inappropriate because it seriously disadvantages the party or parties against whom the motion is brought (CPLR 3212[f]; Alvord & Swift v Muller Constr. Co., Inc., supra ["To limit the availability of discovery here is to penalize the plaintiff for not knowing what he could not know before he had conducted the discovery to which he is entitled"]; Ross v Curtis-Palmer Hydro- Elec. Co., 81 NY2d 494, 506).

On the other hand, a party whose liability can only be vicarious may seek conditional summary judgment for indemnification against the actual wrongdoer, pending determination of plaintiff's action against movant ((Morris v Snappy Car Rental, supra, 84 NY2d at 26); though if there is a question of fact as to whether movant was not merely vicariously liable but was an active wrongdoer the motion will be denied (Martin v Back O'Beyond, Inc., 198 AD2d 479, 480). So, too, will one seeking indemnification when it cannot be determined which of the various parties bears responsibility for the accident (Edholm v Smithtown DiCanio Org., Inc., 217 AD2d 569, 570).

While discouraged by courts, successive summary judgment motions may be made for sufficient cause shown (Evans v Valentine, 213 AD2d 939; see, e.g., Forte v Weiner, 214 AD2d 397 [Court of Appeals decision subsequent to denial of prior motion]; Horton v City of Schenectady, 194 AD2d 973, 974; Dunkin' Donuts, Inc. v HWT Assocs., Inc., 181 AD2d 711, 712 [newly discovered evidence obtained during subsequent disclosure proceedings]), or simply where the subsequent motion was "substantively valid" and granting it would further the ends of justice while eliminating an unnecessary burden on the resources of the courts and parties (Detko v McDonald's Restaurants, 198 AD2d 208, 209). A successive summary judgment motion may not be made in the guise of a motion to renew (Da Ronco v White Plains Hosp. Ctr., 215 AD2d 339, 340).

Rules of Construction Governing Pleadings and Motion Papers on the Disposition of a Summary Judgment Motion

Consonant with this liberal approach, the courts have permitted a party to defeat a summary judgment motion by amending a defective complaint (Alvord & Swift v Muller Constr. Co., Inc., supra, 46 NY2d at 281; Maisch v City of New York, 181 AD2d 467, 469 [despite plaintiff not having requested right to amend and despite defendant's failure to address the defect on its motion]) or answers to interrogatories (Baker v Micro Switch, 197 AD2d 933).

While pleadings are broadly construed, papers submitted in support of or in opposition to the motion are treated differently; because of the nature of the motion they are viewed in the light most favorable to the party in opposition (Rotuba Extruders v Ceppos, 46 NY2d 223, 231). The opponent's pleadings, papers and evidence are deemed to be true; so is any evidence of any party which favors the opponent (O'Sullivan v Presbyterian Hosp., 217 AD2d 98, 101; Weller v College of the Senecas, 217 AD2d 280, 284). The opponent has the benefit of all reasonable inferences that may be drawn from the papers (Rizzo v Lincoln Diner Corp., 215 AD2d 546; Lincoln v Landvest, Inc., 202 AD2d 933, 934), and"[w]here different conclusions can reasonably be drawn from the evidence, the motion should be denied" (Sommer v Federal Signal Corp., supra, 79 NY2d at p. 555; see also, Jaffe v Davis, 214 AD2d 330 ["conflicting inferences" required denial of motion]).

Movant's Burden of Proof under CPLR 3212[b]

The statute requires the motion to be supported by a copy of the pleadings, by affidavit, and by other available proof such as depositions and written admissions (CPLR 3212 [b]). Submission of the pleadings as part of the motion papers is a necessity (Duprey v Carrier Corp., 204 AD2d 977 [motion denied when pleadings not submitted]; Freeman v Easy Glider Roller Rink, 114 AD2d 4 [motion denied when pleadings not submitted]; see Jessup v Hedberg, 196 AD2d 857 [submission of pleadings with movant's attorney's affirmation sufficient to support motion]).

The pleadings lay out the facts and issues in dispute, but in the right circumstances they can themselves be evidence. A pleading verified by a party may be used as an affidavit (CPLR 105 [u]), and by itself or together with affidavits and other evidence may raise triable fact issues and thereby defeat a summary judgment motion (Podraza v Carriero, 212 AD2d 331 [verified complaint together with affidavits and discovery responses sufficient to defeat defendant's motion]; Moore v Michaud, 166 AD2d 883, 884 [co-defendant's verified answer sufficient to defeat defendant's motion to dismiss complaint]). A pleading verified by counsel has no such probative value (Matthews v Schlumberger, 202 AD2d 369, 370)

The substance of movant's position must be presented in the main moving papers. Stating a nominal position in those papers and reserving substantive arguments for a reply is impermissible, since it deprives the opponent of an opportunity to respond (Scherrer v Time Equities, Inc., 218 AD2d 116, 120).

Evidentiary support for the motion is usually furnished by one or more of three types of documentation:

(1)A "specific and factual affidavit" of movant or someone else with personal knowledge of the salient facts (Russo v People's Home Findings Corp., 212 AD2d 588; Desola v Mads, Inc., 213 AD2d 445) rather than an affidavit consisting of "conclusory assertions" (Ayotte v Gervasio, 81 NY2d 1062, 1063), a one-sided view of conflicting evidence (Balsam v Delma Engineering Corp., 203 AD2d 203) or pure speculation (May v Camp Good Days v Special Times, Inc., 182 AD2d 1047, 1048 ["most likely explanation" of accident]). Perhaps the most frequent offender is the affidavit or affirmation of an attorney having no personal knowledge of the facts (Zuckerman v City of New York, supra, 49 NY2d at 560).

(2) An expert's affidavit setting forth his qualifications and demonstrating the merit of a cause of action or defense by an opinion based upon evidentiary facts (Bramble v Sears, Roebuck & Co., 201 AD2d 446; Stuart v Ellis Hosp., 198 AD2d 559, 560), in contradistinction to an expert's affidavit based on conclusory assertions (Cicolello v Limb, 216 AD2d 434), one that fails to refute the specific factual allegations of a complaint or bill of particulars (Muscatello v City of New York, 215 AD2d 463, 464; Indelicato v Wyckoff Heights Hosp., 664; Christine S. v Community Hosp., 202 AD2d 567, 568; Lathart v Daniel, 201 AD2d 930), one based in part on disputed or incorrect facts (Muscatello v City of New York, supra ) or one that expresses subjective opinions insufficient to refute undisputed objective factual evidence (Adirondack League v Sierra Club, 201 AD2d 225, 231).

(3) Relevant and material documentary evidence introduced through these types of affidavits or through the affidavit or affirmation of an attorney, even though he may have no personal knowledge of the facts (W.W.W. Assocs. v Giancontieri, 77 NY2d 157 [contract]; Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966, 967 [insurance policy]; Alvarez v Prospect Hosp., supra, 68 NY2d at 325 [deposition testimony and hospital records]; Olan v Farrell Lines, supra, 64 NY2d at 1093 [deposition testimony and other proof annexed to attorney's affidavit]; Tungsupong v Bronx-Lebanon Hosp. Ctr., 213 AD2d 236 [hospital's anesthesia record]; Jiminez v Valenzuela, 203 AD2d 249, 250 [medical records]; Hereida v Hereida, 203 AD2d 524, 525 [in wrongful death action documentary proof of first degree manslaughter conviction]).

The evidence submitted must be both probative (Cicolello v Limb, supra ; Pizzuto v Poss, 198 AD2d 910; Walter v Niagara Mohawk Power Corp., 193 AD2d 1065 [documents referred to but not included in record not probative]) and in admissible form (Menzel v Plotkin, 202 AD2d 558, 559 [expert's unsworn letter/report not in admissible form]; Pizzuto v Poss, supra [photograph of accident not in admissible form]; Briggs v Consolidated Rail Corp., 190 AD2d 1047, 1048 [uncertified unsworn medical records]; cf. Schwartz v Aetna Life Ins. & Annuity Co., 214 AD2d 975 [arties submitted unsworn medical records and neither objected; court considered those records sua sponte ]).

Deposition transcripts are admissible, but should not be the only support presented (Executive Securites Corp. v Gray, 67 AD2d 860). Movants can make use of opponents' "self-defeating" deposition testimony (Lynn v Lynn, 216 AD2d 194, 195-6; Cusatis v Gooch, 216 AD2d 898, 898-9; Melton v E.P.S. Hair Design, Inc., 202 AD2d 663, 664), bills of particulars (Deangelo v Marcia Service Corp., 199 AD2d 58), answers to interrogatories (Schiraldi v U.S. Mineral Prods., 194 AD2d 482, 483) and judicial admissions through opponents' attorneys (Kurten v Werner Co., 139 AD2d 699). But the other side of the coin is that the motion can be defeated by the movants' own papers (Thoma v Ronai, 82 NY2d 736, 737 [plaintiff's affidavit raised factual issue as to her own negligence]; Groves v Land's End House Co., supra, 80 NY2d 978 [plaintiff's motion denied because of plaintiff's varying versions of accident and because account in complaint raised question whether statute violated]; Muhammed v George Hyman Constr., 216 AD2d 206 [plaintiff's motion denied because his supporting affidavit raised proximate cause issue]; Mauro v Mearsheimer, 207 AD2d 872 [defendant's motion denied because "defendant's own submissions" indicated plaintiff had suffered injury]; Koeppel v City of New York, 202 AD2d 181 [defendant's motion denied because of "judicial admission in defendant's answer"]).

As at trial, the movant has the burden of making a prima facie showing of entitlement to judgment. Failure to demonstrate the absence of any material issues of fact requires denial of the motion, no matter how weak the evidence offered in opposition (Ayotte v Gervasio, supra, 81 NY2d at 1063; Cicolello v Limb, supra, 215 AD2d at 464).