Opposing Party's Burden of Proof under CPLR 3212[b] After Movant Has Made Prima Facie Showing of Entitlement to Summary Judgment.

A prima facie showing of entitlement to summary judgement is a necessity, though it does not guarantee movant's right to that relief (Goldberger v Brick & Ballerstein, Inc., 217 AD2d 682, 683; Lico v Tarantelli, 215 AD2d 999). Once the movant has made such a showing, the burden then shifts to the opponent to present evidentiary proof in admissible form sufficient to show a material issue of fact (Grasso v Angerami, 79 NY2d 813, 814-5) or to proffer an acceptable excuse for failure to tender such proof (Zuckerman v City of New York, supra, 49 NY2d at 62; Balsam v Delma Engineering Corp., supra, 203 AD2d 203 [opponent's hearsay acceptable; good excuse and hearsay bolstered by other evidence]; Landisi v Beacon Community Development Agency, 180 AD2d 1000 [refusal of witnesses to sign statements good excuse]).

The courts do not find all excuses acceptable, however, and reliance on hearsay is more likely to backfire on the opponent (Zuckerman v City of New York, supra ; Forest Med Professional Condominium v Tiburzi, supra, 214 AD2d 962). It is worth noting, too, that in the most extreme cases the court may reject even a non-hearsay account as "inherently improbable" (Marti v NYCHA, 192 AD2d 443, 444).

Nonetheless, and unlike movant's evidentiary burden of proof, the evidentiary standard that an opponent must meet to defeat a motion is a "flexible" one (Friends of Animals v Consolidated Fur Mfgrs., supra, 46 NY2d 1065, 1068; Zuckerman v City of New York, supra, 49 NY2d at 562). This "more generous" standard than that imposed on the movant (W.W. W. Assocs. v Giancontieri, supra, 77 NY2d 157, 164) parallels the rule that papers submitted on the motion are construed most favorably to the opponent (Rotuba Extruders v Ceppos, supra, 46 NY2d at 231).

In spite of this lesser burden and the opponent's ability to adduce evidence not in admissible form in certain cases, opponents generally rely on the same three types of supporting papers presented by movants; the "detailed facts" affidavit (Pellicane v Norstar Bank, 213 AD2d 610), the affidavit by a qualified expert predicated on evidentiary facts and directly refuting each and every material claim raised by movant (Owen v R.J. S. Safety Equip., Inc., 79 NY2d 967, 970), and documentary evidence introduced through affidavits and/or through the affidavit or affirmation of an attorney.

While circumstantial evidence may defeat a motion (Buelow v Imperial Veal & Lamb Co., Inc., 217 AD2d 532; Reynolds v Studley, 217 AD2d 1000; Koeppel v City of New York, 205 AD2d 402, 403), any type of evidence submitted-- direct or circumstantial -- must be both probative and in admissible form (Security Pac. business Credit, Inc. v Peat Marwick Main & Co., 79 NY2d 695. 704). As with the movant's papers, no weight will be given mere repetition or incorporation by reference of the allegations in the pleadings or bills of particulars (Alvarez v Prospect Hosp., supra, 68 NY2d at p. 327; Georges v Swift, 194 AD2d 517), or an expert's "bare conclusory assertions" (Putrino v Buffalo Athletic Club, supra, 82 NY2d at 781; Zuckerman v City of New York, supra, 49 NY2d at 533), or conjecture (Mendes v Whitney-Floral Realty Corp., 216 AD2d 540, 542; Herbert v Morgan Drive-A-Way, Inc., 202 AD2d 886, 888). An expert affidavit on an issue not asserted in the complaint or bill of particulars is not probative (Pinzon v City of New York, 197 AD2d 680) and a non-expert affiant's speculation and conjecture is inadmissible (Segev v Trump Parc Condominium, 215 AD2d 322; Laurent v Logan Bus Co., 215 AD2d 730; ARC Mun. Sec. Corp. v Kleinberg, Kaplan, Wolff & Cohen, 213 AD2d 187) -- as is the affirmation of attorney having no personal knowledge of facts speculating as to what might be proved at trial (Zuckerman v City of New York, supra, 49 NY2d at 563; Jeffcoat v Andrade, 205 AD2d 374, 375).

Indeed, many opponents fail because their papers contain "mere conclusions, expressions of hope or unsubstantiated allegations or assertions" (Zuckerman v City of New York, supra, 49 NY2d at 562) or speculate as to matters which might be established if there were to be a trial. The burden is not so low as this. It is incumbent upon the opponent to show the existence of a triable issue of fact. Hope or guesswork is insufficient.

Just as the opponent need do nothing when movant has not met its burden of proof in the first instance (Ayotte v Gervasio, supra, 81 NY2d at 1063), the opponent need not address any issue not raised in the moving papers (Somoza v St. Vincent's Hosp. & Med. Ctr., 192 AD2d 429, 432). All the same, an opponent must be alert to the necessity of refuting every specific fact alleged by an appropriate affidavit and other proof on an issue not requiring expert opinion (Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539, 544; Marlow v Bd of Educ., 182 AD2d 889, 890) and producing an expert's affidavit to contravene movant's expert's affidavit on each issue raised by the latter (Alvarez v Prospect Hosp., supra, 68 NY2d at 325).

Like the movant, the opponent must be careful that its own papers do not inadvertently support the motion (Olsen v Town of Richfield, 81 NY2d 1024, 1025 [opponent's papers together with movant's papers demonstrated merit of motion]; DiGicomo v St. Joseph's Hosp. & Health Ctr., 182 AD2d 1106 [opponent's position "belied" by its own bill of particulars]; Kurten v Werner Co., supra, 139 AD2d 699 [judicial admissions of opponent's attorney supplied basis for grant of summary judgment]).

The Issue - Finding Process

As a practical matter, if court cannot conclusively determine that there is no factual issue on the record before it will deny the motion (Watson v Work Wear Corp., Inc., 202 AD2d 231 [where "not clear from the record" whether factual issue exists]; Higen Assocs. v Serge El. Co., 190 AD2d 712, 713 ["disorderly and largely uncomprehensible" "confusing melange" of documentary evidence]; Ferguson v Meridian Distr. Services, Inc., 182 AD2d 667, 668-9 ["overlapping and interwoven questions" only resolvable "after the record has been fully developed at a trial"]; Berliner v Thompson, 166 AD2d 78, 82 [motion denied even where opponent's papers supported by only "slight and *** clearly circumstantial" evidence]).

At no time is the court permitted to resolve the factual issues it may uncover (Groves v Land's End House Co., supra, 80 NY2d at 980-1). Evidence as consistent with non-liability as liability will result in dismissal of the motion (Sommer v Federal Signal Corp., supra, 79 NY2d at 555), such as an ambiguous document raising an issue as to the intent of the parties (Braten v Bankers Trust Co., 60 NY2d 155). So, too, will any credibility issue on a material point (Groves v Land's End House Co., supra, 80 NY2d at 980-1), Where a counterclaim raises an issue inextricably interwoven with an issue raised in the complaint summary judgment is also inappropriate (Boston Concessions Group, Inc. v Criterion Ctr. Group, 200 AD2d 543, 544; cf. Cohen v Natif, 202 AD2d 332, 333 [plaintiff's motion granted where counterclaim did not arise from same underlying transaction as, and was separable from, cause of action alleged in complaint]).

A genuine factual issue compels denial of summary judgment regardless of the nature of the case. However, only a genuine and material issue raised by evidentiary facts will suffice to defeat the motion (Andre v Pomeroy, supra, 35 NY2d at 362; Dougherty v Kinard, supra, 215 AD2d at 522); it cannot be defeated by a "feigned" issue (Garvin v Rosenberg, 204 AD2d 388), a "speculative" one (Andre v Pomeroy, supra ), the "illusion of a factual issue" (Marlow v Bd. of Educ., supra, 182 AD2d at p. 890) or the "shadowy semblance" of an issue (Capelin Assocs. v Globe Mfg. Corp., supra, 34 NY2d at p. 341; Jeffcoat v Andrade, supra, 205 AD2d at 375).

Negligence cases stand a little apart. By their very nature they do not usually lend themselves to summary judgment even where facts are uncontested or conceded (Ugarizza v Schmeider, 46 NY2d 471, 474; Jaffe v Davis, 214 AD2d 330). Negligence issues such as foreseeability, proximate cause and superseding cause involve the kinds of factual assessment traditionally left to a jury (Owen v R.J. S. Safety Equip., Inc., supra, 79 NY2d at 970 [assumption of risk]; Lescovich v 180 Madison Ave. Corp., supra, 81 NY2d 982 [negligence, foreseeability]; Ayotte v Gervasio, supra, 81 NY2d 1062 [proximate cause]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [superseding cause]; Cohen v Heritage Motor Tours, 205 AD2d 105, 108 [comparative fault]). This rule is not invariable. Summary judgment can be granted in a negligence action in those less common cases where there is no material fact issue but only a question of law (Matter of Franze v County of Chautaugua, supra, 82 NY2d 688 Merritt Hill Vineyards v Windy Heights Vineyards, supra, 61 NY2d at 112).

As mentioned earlier, summary judgment will be denied where there are essential facts within the exclusive knowledge of the moving party which might be disclosed by an examination before trial (CPLR 3212[f]; Groves v Land's End House Co., supra ; Terranova v Emil, supra, 20 NY2d at 497). Movant's exclusive knowledge of such facts may excuse the opponent's failure to submit evidentiary proof in admissible form (River Bank Am v Daniel Equities Corp., supra, 213 AD2d 929).

The courts have created a three-pronged test for these cases:

(1) There must be a "likelihood" that there is relevant evidence "predominantly if not exclusively" within movant's knowledge (Alvord & Swift v Muller Constr. Co., supra, 46 NY2d at 287; Halsey v County of Madison, 215 AD2d 824; American Home Assurance Co. v Amerford Int'l Corp., 200 AD2d 472, 473 [material documents in movant's exclusive control]).

(2) There must be a showing of how discovery might reveal the existence and content of such evidence (Curiale v AIG Multi-Line Syndicate, Inc., 204 AD2d 237 [no showing discovery would have affected outcome]; First American Bank of New York v Builders Funding Corp., 200 AD2d 946 [information sought could not provide valid defense]); in other words, the motion may not be thwarted by a "fishing expedition" predicated on mere hope or speculation that discovery would produce relevant evidence (Prado v Bowne & Sons, 207 AD2d 875, 876; Williams v Village of Endicott, 202 AD2d 885, 886).

(3) There must be a showing of a reasonable attempt prior to the motion to obtain the discovery now deemed necessary (Atomergic Chemetals Corp. v Hartford Accident. & Indem. Co., 193 AD2d 551). Unexplained delays in seeking discovery preclude denial of the motion (Carrington v City of New York, 201 AD2d 525, 527 [three year delay]; Harrison v ITT Corp., 198 AD2d 50, 51 [seventeen months between commencement of the action and the motion]); Forest Med. Professional Condominium v Tiburzi, 214 AD2d 962[one year]).

Thus, even when discovery has not been completed (Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026; Bogan v Northwestern Mut. Life Ins. Co., 200 AD2d 650, 651) and even when movant has not complied with a discovery order (Salty v Altamont Assocs., 198 AD2d 591, 592), summary judgment may be granted if these standards are not met (Signorile v Lefrak-SBN Assocs., supra, 216 AD2d 133; Carrington v City of New York, 201 AD2d 525, 527 [summary judgment granted where facts within knowledge of third parties over whom movant had no control]) .

The denial of a summary judgment motion is simply a determination on the particular papers submitted that a triable fact issue exists or that the court cannot rule out such an issue (Higen Assocs. v Serge Elev. Co., supra, 190 AD2d at 713). Hence, denial of the motion does not generally preclude either a directieda verdict or a judgment n.o.v. if the evidence at a plenary trial reveals no issue of fact (Cushman & Wakefield, Inc. v 214 East 49th Street Corp., 218 AD2d 464, 468. In the Cushman & Wakefield, case both parties' motions for summary judgment had been denied; after a nonjury trial the complaint was dismissed. In affirming the Appellate Division, First Department [per Wallach, J.] held:

"This Court, of course, is not bound by the doctrine of 'law of the case' made on pretrial motions in reviewing a full record after trial ***. What is 'determined' on a motion for summary judgment is the entitlement of a party to a pretrial judgment upon the affidavits and proofs before the court at that time, not the issues defined by the living testimony and proofs at trial ***. By

way of further example, proof offered to defeat a motion for summary judgment does not meet the standard of proof required to resolve an issue of fact at trial ***." (emphasis in original)

However, if in denying summary judgment the court has made a specific fact finding as authorized by CPLR 3212[g] (Stanski v Ezersky, 210 AD2d 186; Kamyr v St. Paul Surplus Lines, Inc., 152 AD2d 62, 65), such finding is the law of the case at a plenary trial in the action (O'Neil v Peekskill Faculty Assn Local No. 2916, 156 AD2d 514, 515-6; Collins Tuttle & Co., Inc. v Leucadia, Inc., 153 AD2d 526, 527).

The Issue-Determination Process

When the record shows that any party other than movant is entitled to summary judgment, the nisi prius judge or an appellate court may "search the record" and grant such judgment without the necessity of a cross-motion (CPLR 3212[b]; Merritt Hill Vineyards v Windy Heights Vineyards, supra, 61 NY2d at 110-111) even to a nonappealing party (Teller v Bill Hayes, Ltd., 213 AD2d 141, 144; Sciangula v Mancuso, 204 AD2d 708, 709; D'Argento v Village of Homer, 202 AD2d 883, 885). This "reverse summary judgment" is prohibited by statute in matrimonial cases (CPLR 3212 [e]). Moreover, a court may not grant summary judgment where neither party sought such relief (Prosser v Goriveia, 98 AD2d 992, 993), nor may a court grant a nonmoving party summary judgment sua sponte absent an extant motion for summary judgment by another party on a related claim or defense (Conroy v Swartout, 135 AD2d 945, 947).

The decision to search the record is committed to the discretion of the court (Pitter v Gussini Shoes, Inc., 206 AD2d 464, 466 [Appellate Division declined to search record to reach statute of limitations defense not raised in moving papers]; Maisch v City of New York, 181 AD2d 467, 469 [Appellate Division searched record to extent of noting defect in complaint which defendant had not addressed in its motion papers and in interest of justice permitted plaintiff to amend by conditionally denying defendant's motion; instance of court searching record to defeat motion]).

A court may order partial summary judgment and, when appropriate for expeditious disposition of the controversy, direct an immediate trial before a referee, the court or the court and a jury (CPLR 3212[c]; Lipetz v Palmer, 216 AD2d 367, 368 [parties entitled to jury trial on any issue triable as of right by a jury]). This procedure is most common where the only remaining triable fact issues relate to the amount or extent of damages (Salenius v Lisbon, 217 AD2d 692 [summary judgment on liability and immediate trial on amount of damages]; Mara v Puritan Fashions Corp., 179 AD2d 526, 528 [summary judgment on liability and amount of damages and further proceedings ordered on fact issues concerning plaintiff's right to interest]), and where the motion is based on any of the grounds enumerated in CPLR 3211[a] or [b] (Brown v Sagamore Hotel, 183 AD2d 988, 989 [immediate hearing as to whether personal service properly made]).

In addition to granting partial summary judgment and ordering a trial of the remaining issues, the CPLR gives courts broad discretion to make such a remedy as justice requires. The court may sever the cause of action as to which summary judgment is granted from any remaining causes of action (CPLR 3212 [e][1]; S.P. Duggal Corp. v Aetna Cas. & Ins. Co., 181 AD2d 472). It may hold entry of summary judgment in abeyance pending determination of any remaining cause of action (CPLR 3212[e][2]; Richardson v Matarese, 206 AD2d 354, 355 [third-party plaintiff granted conditional summary judgment on indemnity claim against plaintiff's employer pending determination of plaintiff's action against them]; Mike Michaelson Assocs., Inc. v Soifer, 182 AD2d 503, 505 [summary judgment on counterclaim stayed pending resolution of plaintiff's action on condition action be expeditiously prosecuted]).

CPLR 3212(g) provides, in addition, that "[i]f a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action. The court may make any order as may aid in the disposition of the action." Those discretionary powers enable the court to "[s]alvage something of value from an otherwise aborted CPLR 3212 motion" (R.M. Newell Co. v Rice, 158 AD2d 993; E.B. Metal and Rubber Indus. v Washington, 102 AD2d 599, 603; Kamyr v St. Paul Surplus Lines Ins. Co., supra ).

The grant of summary judgment, unlike its denial, has res judicata effect (Strange v Montefiore Hosp. & Med. Ctr., supra, 59 NY2d at 738-9; Smith v Russell Sage College, 54 NY2d 185 [summary judgment dismissal on basis of Statute of Frauds and Statute of Limitations bars subsequent action predicated on same underlying transaction]; Green Point Sav. Bank v Strum, 183 AD2d 870, 871-2) except where summary judgment was not on the merits and was specifically granted "without prejudice" (Factory Point Nat'l Bank v Wooden Indian, Inc., 198 AD2d 563, 564). No such effect is given a judgment where a court would have to guess if it had or had not been granted on the merits (Litz Enterprises, Inc., v. Standard Steel Indus., Inc., 57 AD2d 34, 39) or where issues or parties in the second action are different (Kappas v T.W. Kutter, Inc., 192 AD2d 402, 403).

Epilogue

Reliance on deposition transcripts alone is one such error. Another, only slightly less serious, is a bald, lengthy statement of facts in an affidavit, allegedly based on deposition transcripts, without page references to those transcripts. Common sense and sound legal advocacy dictate that each and every material fact in an affidavit culled from deposition transcripts should be specifically supported by precise references . Failure to do this can raise doubt in a court's mind that there is any evidentiary basis for such stated but unverified facts.

Not a legal error, but a tactical mistake too often made, is the failure to submit a memorandum of law with the motion papers. While permissible in certain circumstances, an affidavit should not as a general rule be used to discuss adjectival or substantive law concepts. A memorandum of law can be a far more effective advocate; but it should not merely state the legal principles supporting or opposing a grant of summary judgment. It is essential to relate the substantive law claimed to be dispositive to the particular facts of the case. It is surprising how often a memorandum will do the former but not the latter.

I would like to acknowledge the contributions of the late Charles McGuire, Esq., to the preparation of this article. His thoughtful and scrupulous observations on this and many other subjects will always be recalled with gratitude and pleasure.