Presents: What s All The Commotion About A Motion?

Transcription

1 Presents: What s All The Commotion About A Motion? Rochester April 11, 2017 Buffalo April 11, 2017 Syracuse April 12, 2017 Albany April 13, 2017 Long Island May 23, 2017 New York May 24, 2017 Materials By: Robin Zimpel-Fontaine, Esq. Cherundolo Law Firm, PLLC AXA Tower, 17 th Floor 100 Madison Street Syracuse, NY (315) robin@cherundolofirm.com

2 I. Overview II. When and where to file a motion III. Preparing, Serving, and Filing the Motion a. Formal and Essential Requirements i. Notice ii. Supporting Affidavits iii. Memorandum of Law b. Serving the Motion c. Filing the Motion IV. Motions to Compel Discovery V. Motions to Dismiss a. Waiver of Grounds for Dismissal b. Non-waivable Grounds c. Motion to Dismiss Based on Improper Service d. Forum Non Conveniens e. Dismissing an Affirmative Defense d. Grounds to Dismiss VI. Motions for Summary Judgment a. Partial Summary Judgment b. Burden on Proof i. Movant Has the Initial Burden ii. Non-moving Party Must Raise a Triable Issue of Fact c. Opposing a Motion for Summary Judgment d. Evidence VII. Orders to Show Cause a. When to use OSC vs. a motion on notice i. Emergency applications ii. Withdrawing as counsel without consent of client b. The ritual dance of the Order to Show Cause c. Shifting the burden d. Service e. Notice requirements f. Applications for injunctive relief VIII. Opposing the Motion a. Opposition papers b. Cross-motions c. Movant s Reply d. No sur-reply permitted without leave of court IX. Oral argument a. Appearance vs. On submission b. Effective oral argument X. The Court s decision a. Court s order b. Motions to renew and/or reargue i. Motion to renew ii. Motion to reargue

3 I. Overview This continuing legal education course is to explain the procedural basics, strategy considerations, and - as practicable as possible, the local rules and customs of pre-trial motion practice. Essentially, when to make a motion; how to make a motion; what is required in your motion papers; and why you should or maybe shouldn t, make a motion for relief from the court. As this is a 2-credit continuing legal education course, I cannot begin to provide an exhaustive study of pre-trial motion practice, but solely a primer on the hows and whys. I hope to assist young practitioners, as well as venerable and trial-weary attorneys, in becoming more knowledgeable about and comfortable with pre-trial motion practice in general; understand the considerations that must be taken into account prior to making and arguing a motion; and the need to become familiar with the local rules of court. Throughout these materials, I have included tips on how not to P@%$ off the court when making a motion. These are things I learned while I was a law clerk for Hon. John C. Cherundolo in Onondaga County Supreme Court. Please take these suggestions to heart. They will make the court s job easier, which will ultimately make your life easier. I relied heavily on the treatise New York Civil Practice Before Trial, by Michael Barr, Sharon Gerstman and Burton Lipshie (James Publishing) when preparing these materials. These invaluable 2 binder-style volumes should be on the desk of every trial attorney and referred to often.

4 II. When and Where to File a Motion A motion is the device used by the parties to obtain orders. A motion should be filed when relief is needed, the parties have been unable to resolve the matter on their own, and only a court order will do. Motions resolve pretrial disputes between parties, can narrow the number of issues that must be considered at trial, may render accelerated judgment on a cause of action or defense, and will assist the court in managing the flow of litigation through the court system. Motion practice can also go so far as to decide entire cases without the need of trial. When deciding whether to file a motion or not, you should consider the following and how each might affect your case in the short term and the long run: Is the relief you would be requesting worth the time and expense that will be expended in obtaining it? Can you obtain the relief by other (legal) means? Are you amicable with opposing counsel? Would she or he be willing to enter into a stipulation with regard to the relief you are seeking? By filing a motion, will you be showing opposing counsel aspects of your case that you would rather not come to light or that you would prefer to hold close? Would filing a motion expose your theory of the case; require you to release your expert s opinions and/or your expert s identity before you have to or want to? Are you going to upset the court? Is the motion frivolous? Is it apparent that you do not have sufficient grounds for the relief you would be requesting (i.e., making a motion for summary judgment when it is abundantly clear that there are material issues of fact that must be decided by a trier of fact)?

5 If you have answered any of these questions in the affirmative, you should probably hold off on filing the motion. The timing for filing many pre-trial motions is dictated by the CPLR, or deadlines may be set by the court in a preliminary conference stipulation and order, by local rules of court, or rules specific to a judge s chambers. So, make sure you are familiar with the contents of your scheduling order, the local rules of court, and/or the preferences for your assigned judge. There are very few hard and fast rules with regard to the timing by which you can file a motion. While you can always throw yourself on the mercy of the court and seek leave to file a late motion, there is one deadline that cannot be extended by the court, even with the consent of all parties. The deadline by which motions for summary judgment must be filed after the filing of the Trial Note of Issue and Certificate of Readiness as set forth by the CPLR is a drop dead date. Pursuant to CPLR 3212(a), motions for summary judgment MUST be filed within 120 days after the filing of the Trial Note of Issue. The court can truncate the timing of filing such motions, so be sure to familiarize with the local rules, the rules of the assigned judge, and the preliminary conference stipulation and order. One thing that should be noted is: DON T DELAY IN MAKING YOUR APPLICATION FOR RELIEF. There are some deadlines set forth in the CPLR that require a party to act within a certain time period or the issue is deemed waived. I.e., if a defendant does not move to dismiss a complaint on the issue of improper service of the summons and complaint within 60 days after service of the answer, it will be deemed waived, unless undue hardship can be shown. CPLR 3211(e). If an action has been filed, a motion must be filed in the court and the county where the action is venued (except ex parte motions, which will be discussed later). If no RJI has been filed

6 in an action, thus no judge has been assigned to a matter, along with the Notice of Motion and accompanying supporting affidavits and exhibits, you will also need to file a Request for Judicial Intervention (RJI), along with the necessary filing fees for the both the RJI and the motion. The filing of the RJI will prompt the clerk to assign a justice to hear the matter and render the decision on the motion. Due to the use of the Individual Assignment System (IAS), the judge assigned to hear the motion will remain assigned to the action for its duration. Once a judge has been assigned to an action, any motion filed must be made returnable to the assigned judge. Essentially, the motions follow the judge. As I learned through my own experience as a law clerk, make sure to make your motion user friendly. Make sure it is properly bound either stabled, in a binder, or with binder tabs. If it is going to be an enormous volume of papers and unwieldy for the court to read through easily, break it up into manageable portions. Cite to the record when referring to specific facts of your case in your affidavit and memo of law. Don t make the court go looking for it. Call the judge s chambers and ask if she or he requires a working copy of the motion papers. Don t wait until the eve of a return date to ask for an adjournment. This will make the law clerk want to stick pins in a voodoo doll made in your likeness. Don t submit your papers late and don t walk into court on the return date and handdeliver your reply papers to the court. The court is entitled to your reply papers prior to motion term. If sending reply papers via standard US post is not going to get your reply papers to the court at least the day before the scheduled return date, ask the law

7 clerk if you can her or him a copy of your reply papers as a convenience in addition to the hard copies that are being filed; send the papers via overnight post; or hand-deliver the papers to chambers. Do not use reply papers to bring up new facts, new issues, or new arguments. Reply papers are to only address the arguments set forth in opposing counsel s responding papers. And if you have nothing new to say in your reply papers and are just trying to get in the last word, don t file reply papers. DO NOT file sur-reply papers. Sur-reply papers are not permitted under the CPLR. With a showing of special circumstances, you can seek leave of court to submit surreply papers, but never assume that you will have the right to do so.

8 III. Preparing, Serving, and Filing the Motion a. Formal and Essential Requirements i. Notice: There are several things that are required for all motions on notice or orders to show cause. The motion papers must contain: a caption setting forth the name of the court, the venue, and the parties to the action; whether the application is for a motion or an Order to Show Cause; the nature of the relief sought; the evidence on which the motion is based; the name of the judge, if one has been assigned; if already assigned, the index number of the action; the name and address of the attorney filing the application; the attorney s signature, which will serve as a certificate that, to the best of the attorney s knowledge, the motion papers are not frivolous; the return date, or hearing date, (and time of oral argument if same is requested) on which the court will consider the application. o On a Notice of Motion, to obtain the return date, you can either refer to the assigned judge s motion calendar and put the date on the Notice of Motion, or leave blank and have the court clerk fill in the return date. Please note that even if you fill in the return date yourself, make sure you are allowing enough time for service of the motion and to allow sufficient time for opposing counsel to prepare and submit papers. Check CPLR 2103 and 2214 for statutory requirements. Additionally, if you supply your own return date, this

9 date may be changed by the clerk depending on how busy the judge s motion calendar may be for a motion term. So, check the papers carefully when they are returned by the court and let all parties that are entitled to service know the assigned return date. o With an Order to Show Cause, leave the return date blank when you submit the application to the court for consideration. The judge will assign a return date when signing the Order to Show Cause; if oral argument is requested, the motion must state as much. ii. Supporting Affidavits and Exhibits A notice of motion must specify the documents upon which relief is based. A motion must be supported and accompanied by affidavits/affirmations, and any documentary exhibits required, to prove to the court that the relief requested is appropriate and should be granted. Certain types of motions require that specific documents be attached. For example, a motion to dismiss must have a copy of the complaint attached, and a motion for summary judgment pursuant to CPLR 3212 must be accompanied by the pleadings. It will be considered a fatal flaw if you don t file and serve a complete set of moving papers. An affidavit is a statement signed before a notary public where the affiant is duly sworn with regard to the statements made in the affidavit. Affidavits submitted in support of or in opposition to a motion must be notarized. If the affidavit is signed and notarized by someone located outside the state of New York, a certificate of conformity must accompany the affidavit. Affirmations differ from affidavits because there is no need for a notary public to witness the affirming person s signature. The affirmation is made under the penalty of perjury with regard to the statements made in the affirmation. However, an affirmation may only be used in

10 lieu of an affidavit by attorneys, physicians, osteopaths and dentists. No other professionals may submit an affirmation not chiropractors; not podiatrists. AND, if the deponent to the affirmation is a named party in the action, an affirmation MAY NOT be used; an affidavit must be submitted instead. Affidavits and affirmations are not only used to provide information to the court from someone with first-hand knowledge to the relevant events and circumstances, they are also necessary to submit evidence by way of exhibits to the court: pleadings; discovery documents; deposition transcripts (or, preferably, just the cover page and relevant excerpts), etc. iii. Memorandum of Law A memo of law is not required when filing a motion, but I would not recommend filing without one. Courts read dozens of motions for every motion term, then decide those motions based on the facts presented AND HOW THE LAW APPLIES TO THOSE FACTS! If you truly want a judge (or law clerk) to throw up her or his hands and take your name in vain, then go ahead and file a motion without an accompanying memo of law. Why would you not take the opportunity to show the court how the law applies to the facts of your case and that the law is in your favor for obtaining the relief you are requesting? It is apparent that the method by which statutes and case citations are provided to the court differ dramatically between downstate courts and upstate courts. Downstate courts appear to prefer that the attorney s law be incorporated in her or his affidavit/affirmation. Upstate courts prefer a separate memorandum of law, unless the motion papers are relatively short and straightforward and the law can be included very briefly in the attorney affidavit, such as with a discovery motion. Because of the difference in custom and practice, make sure you find out what

11 the assigned judge prefers, and if no judge is assigned as yet, follow the custom and practice of the area in which the court sits. I m not going to tell you how to write a memo of law, but I will tell you what makes a law clerk cringe and ways to avoid frustrating the court. Just some practical measures to keep in mind: In your memo of law, when referring to the facts of your case, make sure to cite to the location in record before the court where the law clerk and judge can find those facts. Do not just throw a bunch of papers at the court and expect the court to figure it all out. This will probably not end well for you. Cite the law correctly. If you mis-cite law, your credibility for that motion, and possibly any future motions in that action, will be questioned. Make sure you read the cases you are citing, not just the squibs. Your case is made out of facts. Make sure the decisions you cite have facts that are going to work in support of your position and not against it. If there are decisions out there that do not work in your favor, do not ignore them. It is guaranteed that opposing counsel and/or the court will find them and, as a result, you will appear disingenuous and shifty. Address adverse decisions and use the facts of your case to differentiate how unfavorable law should not apply. Cite to caselaw in the Appellate Department in which the action is pending. Example, if you have a case that is filed in Onondaga County, which is in the 4 th Appellate Department, cite cases that were decided by the 4 th Appellate Department. Cite the facts in your record correctly. Again, if you don t cite something correctly, your credibility will be called into question.

12 Cite the governing statute. Don t make the court go look for it. The court is busy and does not want to do your work for you. Be brief. Really. Don t be a jerk. If you use a motion to make personal attacks or nasty and snide comments about opposing counsel or parties to the action, you will come across like a tool. Sarcasm does not come across well in black and white type. If you come across as overly-emotional or like you have a personal score to settle, the court will be lead to believe that your position is weak. b. Serving the Motion Computing the time in which service of motion papers must be made is set forth in CPLFR 2214 and A motion is made when service of the motion papers is complete. CPLR Service of an Order to Show Cause is complete when the requirements set forth by the court in the Order to Show Cause are satisfied. Under the General Obligations Law, service of a motion by mail is complete when the motion papers are placed in a mail receptacle, i.e., mail box. IT IS NOT WHEN THE RECIPIENT OF THE MOTION PAPERS ACTUALLY RECEIVES THE PAPERS OR THE DATE THAT IS STATED IN THE POSTMARK (sorry for yelling). An affidavit that the papers were timely served by US mail by placing the papers in a US post box on a particular date is a presumption that service was timely made. This cannot be rebutted by a postmark stating a later date or an affidavit indicating when delivery was eventually made on the recipient. The timing requirements on when papers must be served either the initial motion papers, opposition papers, or reply papers, is set forth in CPLR Please be mindful that if the method of service employed is by mailing the papers to counsel or unrepresented parties, you

13 must add 5 days to the prescribed period. CPLR 2103(d). This sets forth a whole chain reaction of events and conditions that I believe were thought up by a sadist. It may be necessary to have a slide-rule, a sun dial and duct tape available to figure it all out, so read the statute carefully. All other parties who have appeared in an action must be served copies of the notice of motion and all supporting papers, and the memorandum of law. If a party is represented by an attorney, the attorney must be served with the motion papers. Methods by which service on an attorney for a party made be accomplished are set forth in CPLR 2013(b). If an attorney represents multiple parties in an action, only one copy of the motion papers must be served. If a party is unrepresented by counsel, then the motion papers must be served on that party. Parties who have defaulted for failing to answer or appear in an action are not entitled to service of motion papers. CPLR 2103 requires only that answering/appearing parties in an action are due service of motion papers. c. Filing the Motion You may be asking why I addressed service of a motion prior to addressing filing the motion papers. That is because service of the motion papers on opposing counsel/parties typically comes before or simultaneously with filing the motion. Under the CPLR, motion papers actually don t have to be filed with the court until the return date at the latest, but I wouldn t recommend it if you don t want the law clerk to get the voodoo doll out again. Each party must provide the court will all motion papers that have been served. And prior to filing the papers with the court, the motion fee must be paid and the papers stamped by the clerk indicating same. Courts may have different methods, clerks, or locations in which filing must be accomplished. Be sure to check the local rules for the custom and practice of the locale where

14 you will be filing the motion. Do not assume that any motion papers filed with the county clerk are going to be forwarded to the judge s chambers or that the judge has access to the county clerk s file; very often papers filed with the county clerk are ferreted away, never to be seen again (unless you request to see the Clerk s file on an action). You may need to have a conformed copy of the papers to provide to the judge. Again, check the local rules and the preferences of the assigned judge with regard to how, when and where motions papers are to be provided to the court. An affidavit of service evidencing the date and method of service must accompany all motion papers and be filed with the court. CPLR 2214(b) and 22 NYCRR 202.8(b).

15 IV. Motions to Compel Discovery If this is the first application to compel discovery in an action and the parties have not entered into a preliminary conference stipulation and order already, the court may choose not hear the motion, but will have the parties enter into a preliminary conference stipulation and order. If the parties cannot accomplish this task by themselves, then a discovery conference may be scheduled with the court. If the conference does not settle the dispute, then the motion will most likely be restored to the motion calendar. If an RJI (request for judicial intervention) has been filed, and a judge has been assigned to a case, it would be wise to look at a judge s individual rules of her or his chamber prior to filing a motion to compel discovery. Rather than spend the time, effort and filing fees drafting and filing a motion to compel discovery, you may be able to accomplish the same thing production of discovery, by sending a letter to the court asking that a conference be scheduled with the judge, or by simply entering into a preliminary conference stipulation with opposing counsel and having that stipulation signed into an order. What you need for a motion to compel discovery: A Notice of Motion An attorney affidavit setting forth the procedural history of the case; identifying the exhibits attached; the timing of service of the discovery demands and the opposing party s failure to respond in a timely fashion; and the good faith attempt to resolve the discovery dispute. The exhibits should include: o A copy of the pleadings; o A copy of the subject discovery demands; and o A copy of the good faith letter.

16 V. Motions to Dismiss I could easily write a stand-alone 2 credit (or more) CLE on motions to dismiss and motions for summary judgment. I am not going to even attempt to try to fit that all in here. What I will tell you about is the basic, important, and remember-this-so-you-don t-get-sued-in-legalmalpractice stuff you should know about. A motion to dismiss can eliminate an action or a cause of action or an affirmative defense, counter-claim or cross-claim to be disposed of early on in the proceedings. Often before issue is joined in an action. The governing statute is CPLR Prior to filing a motion to dismiss, consider the following: Is the motion timely? Is this is a situation where a motion for summary judgment may be more appropriate? Will a motion to dismiss accomplish anything or are you better off just serving an answer? A motion to dismiss can be brought on one ground or multiple grounds. Because no more than one motion to dismiss can be brought, make sure if you are going to make such a motion that you raise all the applicable grounds that can be made; you will not have a second chance. A motion to dismiss may seem very similar to a motion for summary judgment under CPLR 3212; however, the two types of motions vary greatly. A motion to dismiss under CPLR 3211 may be converted by the court into a motion for summary judgment; a motion for summary judgment may not be converted to a motion to dismiss. Motions to dismiss are typically made before an answer is served; a motion for summary judgment can be made any time after issue is joined and until 120 days after the filing of the Trial Note of Issue and Certificate of Readiness.

17 When considering a motion to dismiss, the court may look only within the 4 corners of the complaint (although affidavits may be considered for a limited purpose for motions to dismiss made pursuant to CPLR 3211 [c]), and must assume that all the allegations in the complaint are true (unless truly outlandish think alien abduction). In a motion for summary judgment, parties may produce evidence in admissible form to support the allegations, and the court may consider other extrinsic evidence. If the court determines, when reviewing a motion to dismiss, that such additional evidence is necessary to make a decision, the court can, sua sponte, convert a motion to dismiss into one for summary judgment. There are other types of dismissal motions other than those pursuant to CPLR 3211, such as for forum non conveniens (CPLR 327); failure to serve a complaint within 20 days of demand being made after service of a summons with notice (CPLR 3012(b); and Default Judgment; Dismissal for Failure to Act (CPLR 3216). a. Waiver of grounds for dismissal You should be crystal clear on the fact that some grounds on which to move to dismiss an action are waived unless these grounds are raised in either the first responsive pleading served or in a motion to dismiss. See CPLR 3211(a). These include: Defense is based on documentary evidence; Proponent of the cause of action lacks capacity to sue; The parties are involved in another action in another court arising out of the same facts and circumstances; Arbitration and award; collateral estoppel, discharge in bankruptcy; infancy or other disability of the moving party; payment; release; res judicata; statute of limitations; and statute of frauds; and

18 The counterclaim is not properly interposed. PLEASE NOTE: When you make a motion to dismiss under any ground set forth in CPLR 3211 (a), you must include any challenges to personal jurisdiction, in rem jurisdiction and quasi-in-rem jurisdiction. Failing to raise one of these jurisdictional grounds in the motion to dismiss will waive the jurisdictional defense and you will be forever barred from raising the defense in the answer. A motion to dismiss should be made within the time period to serve a responsive pleading. If a responsive pleading has already been served, then a motion to dismiss will most likely be considered untimely. Some courts have held that only motions to dismiss based on non-waivable grounds can be considered if filed after a responsive pleading has been served. Other courts find that motions to dismiss, regardless of grounds, will be considered, even if filed after the service of a responsive pleading, so long as any waivable grounds on which the motion is based were preserved in the responsive pleading. Still further, some courts, rather than deny a motion to dismiss because it may have been filed in an untimely manner, will simply convert the motion to one of summary judgment under CPLR AS A PRACTICE TIP: If a party served seeks an extension of time in which to serve a responsive pleading, be clear to opposing counsel that the extension of time is solely an extension of time to serve the pleadings, NOT an extension of time in which to move to dismiss. It is entirely reasonable to wish not to provide additional time to your opponent solely so that she or he can prepare papers to dismiss your claim, cause of action or defense. b. Motion Based on Improper Service

19 A defense based on improper service of process on a defendant under CPLR 3211 (8) and (9) may be grounds for a motion to dismiss and/or may be pleaded as an affirmative defense in the answer. One thing to remember when alleging that proper service on a defendant has not been effectuated is that the proponent of that defense must move to dismiss pursuant to CPLR 3211(e) within 60 days of service of the responsive pleading or it will be deemed waived. This is a rather hard and fast rule, although if you fail to move within 60 days, you may be granted leave to file such a motion to dismiss upon a showing of undue hardship. Undue hardship is a far greater burden to show than good cause. To show undue hardship, a party must show that a motion to dismiss for improper service could not have been made within 60 days of service of the responsive pleading with the exercise of ordinary diligence. c. Dismissing an Affirmative Defense A motion to dismiss an affirmative defense can be made at any time. Even on the eve of trial. d. Forum Non Conveniens There are a few motions to dismiss that do not fall under CPLR 3211, such as dismissal for forum non conveniens, under CPLR 327. A motion to dismiss may be made at any time during a proceeding, but in practice it is wise to make it as soon as practicable. By failing to move on the grounds of inconvenient forum and engaging in pre-trial discovery, etc., a court may deny an inconvenient forum motion to dismiss on the basis of laches (yes, laches still exists). e. Grounds to Dismiss Below are some of the grounds on which a party may move to dismiss: Subject Matter Jurisdiction Pre-emption by Federal Statute;

20 Claims against the State actions for money damages against the State of New York, State Agencies and/or State Officials must be brought in the Court of Claims, not Supreme Court. If you file a state actor in Supreme Court, it will be dismissed; the same applies if you file an action against a non-state actor in the court of Claims. If you have a case where there are state and non-state defendants, you will have to file an action against the state defendants in the Court of Claims and a separate action against the non-state defendants in Supreme Court. Counsel in these actions can typically stipulate to join the matters for purposes of discovery only, or one court may stay the proceedings pending the outcome of the other action; Forum non conveniens; Sovereign immunity; Nonjusticiability: * political questions; * claims are not ripe for review; * the action call for an advisory opinion; Personal jurisdiction; Defective summons; Improper service of process on the defendants; The court lacks jurisdiction over the defendants; Lack of capacity to sue: * Plaintiff is an infant; * Plaintiff is mentally incompetent; * Plaintiff suffers from a statutory disability (ex.: bankruptcy)

21 * Plaintiff lacks standing to sue; * Failure to comply with a condition precedent; Foreign corporation not licensed to do business in New York; Lack of representative capacity; There is another action arising out of the same facts and circumstances pending in another court between the same parties; Absence of an indispensable party; Failure to state a cause of action Pleading deficiencies (If faced with a motion to dismiss on the basis of inartfully pleaded claims, be sure to cross-move for leave to amend the pleading if necessary); Various affirmative defenses: * Arbitration; * Res Judicata; * Collateral Estoppel; * Bankruptcy; * Disability of the moving party; * Statute of limitations; * Statute of Frauds; Improper counterclaim; Defense founded on documentary evidence; and Forum non conveniens

22 Motions for Summary Judgment A motion for summary judgment is an application to the court asking that the court issue a decision on an action, causes of action or affirmative defenses. It is a motion that asks the court to decide a motion on the merits and you could conceivably win or lose a cause on a motion for summary judgment and is available in all types of actions. The court determines whether the uncontroverted facts in an action entitles the movant or the opponent to judgment as a matter of law. A party can seek a full summary judgment on all issues in an action, where the court may decide a case as a matter of law. A party can also seek partial summary judgment, where the movant is only asking the court to render a decision as a matter of law on an element of the cause of action (such as negligence or liability) or defense and can narrow the issues that would need to be determined by a jury at time of trial. A motion for summary judgment can be made by any party at any time after issue is joined in an action; however, they most commonly are filed after the filing of the Trial Note of Issue. PRACTICE TIP: Always keep the possibility of a motion for summary judgment in mind and be prepared for it when it is filed. As discussed above, a motion for summary judgment differs from a motion to dismiss in several ways: it cannot be brought prior to issue being joined; extrinsic evidence is considered; and a denial of a motion for summary judgment does not preclude later such motions being brought. In personal injury actions, in particular personal injury actions that would require the testimony of an expert witness at time of trial, motions for summary judgment are brought by the defense so that the plaintiff is required to release her or his expert opinion and the basis for same

23 well in advance of trial. If you are a trial attorney who represents plaintiffs in medical malpractice, products liability, or other complex litigation that will require the testimony of an expert witness, you must be prepared to respond to a motion for summary judgment at the time the Trial Note of Issue is filed because more likely than not, it will be forthcoming. a. Partial Summary Judgment Partial summary judgment can be granted on a motion that only seeks judgment as a matter of law on just some of the causes of action, elements and/or affirmative defenses in an action. It can also be granted by the court when a party has moved for full summary judgment but the court has decided that triable issues of material fact exist on some claims or defenses, which would preclude summary judgment, but that the movant had proven a prima facie case with regard to other issues. If the court grants partial summary judgment on the issue of liability, the plaintiff is entitled to collect interest (currently set by statute at 9%) from the date judgment was rendered on the issue of liability to the date judgment is rendered on the issue of damages. The idea of mounting interest rowing on a judgment, the amount of which has not yet been determined, is exceptionally handy in facilitating settlement. b. Burden of Proof For a claim or defense to be established as a matter of law, the movant of a motion for summary judgment must come forward to facts, found in evidence submitted in admissible form that will establish each element of that claim or defense. On a motion for summary judgment, evidence must be submitted in admissible form. An affidavit or affirmation from someone with personal knowledge of the facts or copies of or excerpts from the sworn deposition testimony, for example. An attorney affidavit/affirmation

24 with nothing more, will not suffice to raise a triable issue of fact to defeat a motion for summary judgment because the attorney more likely than not does not have personal knowledge of the facts and circumstances giving rise to an action. Conclusory statements that are not supported by evidence are insufficient to establish entitlement to summary judgment. Reasonable inferences will be drawn against the movant and in favor of the non-moving party. In close cases where it cannot be determined whether there is a triable issue of fact or not, the court will deny the motion for summary judgment. i. The Movant Has the Initial Burden The party moving for summary judgment has the burden of proving, prima facie, that she or he is entitled to judgment as a matter of law. Even if the non-moving party defaults on the motion and submits no responding papers, the court must deny the motion if the movant has failed to meet her or his burden of proof on each element of the claim or defense. The burden remains evens if there is no opposition to the motion. ii. Non-moving Party Must Raise a Triable Issue of Material Fact If the movant has established a prima facie case and entitlement to judgment as a matter of law, the burden the shifts to the non-moving party to raise a triable issue of material fact. PRACTICE TIP: If opposing a motion for summary judgment, even if you believe that the movant has not established entitlement to judgment as a matter of law, initially argue this point, but also argue in the alternative that there are triable issues of fact that preclude the grant of summary judgment. Do not assume the court will agree with you that the movant did not meet her or his burden in the first place. c, Opposing a Motion for Summary Judgment

25 If the moving party has met his or her burden, it is incumbent that the non-moving party establish that there are triable issues of material fact which would preclude the grant of summary judgment. To do so, the non-moving party has to base this showing on specific facts which are probative on material issues and will convince the court that these issues are such that a trier of fact is required to figure them out. Please keep in mind, you do not have to do anything more than raise a triable issue of material fact. Think about two aspects of that sentence: triable issue and material fact. A motion for summary judgment must be denied if the opponent to the motion simply shows the court that there are facts sufficient to require a trial on any issue of fact essential to the proof of the movant s claim or defense. Identify the facts essential to the claim or defense that is the subject of the movant s motion and identify those that are in dispute. A fact is material if it proves or disproves a proposition in issue in the action, or is probative of a fact in issue. Facts that do not prove or disprove a proposition in issue are not material. Concentrate of the material facts. Be sure to address each material fact at issue and provide evidence of each in your responding papers. If you fail to address an issue, it might be deemed to have been admitted. Because motions for summary judgment can be filed any time after issue is joined, it is conceivable that you may face responding to a motion for summary judgment prior to discovery being completed, or any discovery having been done at all! Further, a motion for summary judgment will automatically stay all discovery in an action. If the facts needed to oppose a motion for summary judgment may exist but at the time of motion may not be stated, the responsive affidavit should argue that the motion is premature, that additional discovery is necessary, and request that the court deny the motion (without prejudice subject to renewal at the

26 close of discovery) and allow for discovery to be done even if it is just limited discovery on an issue. d. Evidence A proponent of a motion for summary judgment must support her or his motion with an affidavit, a copy of the pleadings, and other evidence, such as deposition transcripts, written admissions, and other materials gathered during the course of discovery. If a copy of the pleadings are not attached as exhibits, the motion for summary judgment is defective and must be denied. Further, only sworn testimony is to be considered as evidence. What does not count as sworn testimony: letters (unless they contain a party admission); other forms of correspondence (also, unless they contain a party admission); unsworn allegations; web pages; and reports. To be considered on a motion for summary judgment, the evidence must be admissible at time of trial. Remember, just because something was discoverable does not mean that it is admissible. For example, a hearsay statement may not be considered in support of a motion for summary judgment unless it falls within one of the exceptions to the hearsay rule. Evidence submit to exclusion under the Dead Man s Statute may not be considered in support of a motion, although it may be considered in opposition to same. An affidavit from the movant supporting the motion is required. This affidavit must be made by someone with firsthand knowledge of the facts (AN ATTORNEY S AFFIDAVIT ALONE WILL NOT SUFFICE UNLESS SHE OR HE HAS FIRSTHAND KNOWLEDGE OF THE FACTS!); must recite all of the materials, and show that there is no defense to the claim, or that the claim or defense has no merit.

27 If there is an attorney affidavit submitted in support of a motion for summary judgment, it is typically to set forth the procedural history of the action and serves as a vehicle by which exhibits are submitted on the motion. The exhibit evidence must be in admissible form. Expert witness affidavits or affirmations are required on a motion for summary judgment if expert witness testimony would be required at time of trial. The expert s affidavit must set forth the expert s opinion and the evidentiary basis for the expert s opinion. Unsupported conclusory statements will not be considered.

28 VII. Orders to Show Cause An Order to Show Cause is another way a party can present information to the Court with reasons why the Court should grant the relief requested to that party. It s an alternative to the standard Motion on Notice, as it can shorten the time within which the parties may be heard by the Court. It is often used in emergency situations where immediate relief is requested, such as a stay of the proceedings or injunctive relief. The Order to Show Cause is exactly what it sounds like an order. The moving party prepares the Order to Show Cause, which is accompanied by supporting affidavits, exhibits (if necessary), and a memorandum of law. A judge must sign the Order to Show Cause. Please keep in mind, the judge may also decline to sign the Order to Show Cause as well, so put your best proof and arguments forward at the time you are presenting the Order to Show Cause to the Judge. The Order to Show Cause will set forth the procedural dictates for service of the signed Order to Show Cause and supporting papers on opposing counsel and/or other effected parties, persons or entities; submission of opposition papers and reply papers; any conditions or requirements the Court may deem necessary; and whether a temporary restraining order is granted during the pendency of the application and a final decision on the relief requested can be made by the Court. a. When to Use Order to Show Cause vs. Motion on Notice The use of the Order to Show Cause is primarily in two situations: 1) where a party is seeking immediate emergency relief; and 2) when an attorney or law firm is seeking to withdraw as counsel for a client and the client has not or will not consent to said withdrawal. i. Emergency Applications

29 The advantage of the Order to Show Cause is that the hearing date on the motion can be held on short notice and a temporary restraining order can be put in place to enjoin a party, person and/or entity from acting or failing to act until the motion can be heard and a decision can be made by the court. When applying for emergency relief, such as a preliminary injunction, under 22 NYCRR 202.7(f), the moving party must put the party to be enjoined on notice of the date, time, and place said application will be presented to the court for consideration UNLESS, notice would significantly prejudice the movant. The affidavit accompanying the Order to Show Cause must set forth either that such notice has been given, or that notice would significantly prejudice the movant and the basis for same. The affidavit must also set forth whether the relief requested had been sought before and the results of said application. If the relief had previously been denied, then any new facts and circumstances that have arisen since that application should be set forth that might change the court s decision. ii. Withdrawing as Counsel Without Consent of the Client When you find it necessary to withdraw as counsel for a client, and the client either does not consent or does not respond to correspondence, you must bring an Order to Show Cause for leave to withdraw as counsel. An application to withdraw as counsel CANNOT be done by notice of motion because the client must be informed with she or he is losing her or his legal representation is necessary. An Order to Show Cause will allow the court to dictate how service will be effectuated on the client that reasonably calculated to provide notice of the application, and the time and place of the hearing on the motion. It is essential that service on all parties be

30 performed pursuant to the directives of the court as set forth in the signed Order to Show Cause, and that proof of service be filed with the court. b. The Ritual Dance of the Order to Show Cause An Order to Show Cause has two orders: the initial Order to Show Cause, and the final Order with the court s decision on the application after all parties have had an opportunity to be heard. This is lost on many people. Because there are two orders, it is easy to get confused as to who is doing what to whom and where the papers have to go. There is a little dance that must be done to have the application properly filed and before the court. Please note that this dance may vary from county to county, and the advent of e-filing has made it a bit easier. Essentially, this is what has to happen when bringing an Order to Show Cause: 1. The papers are sent to the County Clerk s office where a motion fee is paid (and if the Order to Show Cause is being brought at the inception of an action or prior to the filing of a summons and complaint, then an application for an index number and a request for judicial intervention and their respective fees must also be filed), the papers are stamped as paid, and then the entire packet is sent to the Supreme Court Clerk. 2. If a judge has already been assigned to the action, the Supreme Court Clerk will forward the papers to the assigned chambers. If not judge has yet been assigned, then assignment of the judge will be done and then the papers will be forwarded to her or his chambers. 3. Once the papers reach chambers, the judge will review the papers. If there is an application for injunctive relief and opposing counsel and/or the party to be enjoined has been put on notice of the application, the judge may want counsel to be present to hear their respective positions on whether the injunctive relief should be granted. If the judge decides to consider the application at a later hearing date, she or he will fill in the return date and service requirements

31 and sign the Order to Show Cause. The judge may also decline to sign the Order to Show Cause and the dance stops there. If this occurs, the refusal to sign an Order to Show Cause is not appealable; however, you can file a notice of motion seeking the same relief so that the judge will be required to hear the motion and issue a decision and order eventually. The decision and order would then be appealable if necessary. 4. The original signed Order to Show Cause is then filed in the County Clerk s office it is an order, after all. When you file it, make sure to ask for a certified copy of the Order to Show Cause because you will need to serve copies of the certified copy and all supporting papers on all necessary parties, as well as provide a copy to the court, along with all supporting papers. 5. After there is a hearing on the application and all parties have had a full and fair opportunity to be heard on the matter, the court will issue a decision on the matter. This will be reduced to an order by the court or by the prevailing party. That order is then filed with the County Clerk, along with the original supporting papers and a copy of the dated-stamped, filed order is then served on all parties along with a notice of entry (more on that later). Again, efiling has made this process easier, but efiling is not yet available everywhere, so it is important to know how to do the Order to Show Cause Two-Step. And again, this procedure may differ from county to county, so become familiar with the customs and practices in the venue where you will be filing. c. Shifting the Burden The language of the Order to Show Cause: XXX is directed to appear and show cause as to why an order should not be issued This can mislead you to believe that the movant has shifted the burden of proof onto the party being served the Order to Show Cause. Regardless of

32 the language, the initial burden remains on the proponent of the application that she or he is entitled to the requested relief. d. Service When preparing the Order to Show Cause for the court s consideration, you may put in the order a proposed method of service and the date/time by which it must be effectuated (such as by first class mail; registered mail, return receipt requested; personal service, etc.). However, be mindful that the judge may direct the method and timing of service different than those you have suggested. Pay attention to the signed Order to Show Cause and effectuate service pursuant to the court s directives. The signed Order to Show Cause is an Order and you must act accordingly. If you fail to service the necessary parties, personas and/or entities necessary pursuant to the signed Order to Show Cause, you must submit an Amended Order to Show Cause to get new dates by which same must be done. It is not necessary to re-file the whole application, but just send an Amended Order to Show Cause to chambers (on notice to all counsel) for the judge to insert new dates. If you fail to serve a necessary party, person or entity pursuant to the signed Order to Show Cause because you cannot locate that party, person or entity, submit a short affidavit setting forth the attempts and due diligence by which you have attempted to effectuate service and ask for an alternative method of service than that which was previously directed by the court. Once service is complete, and before the return date of the motion, file proof of service with the court either an affidavit of service, a green card returned receipt from certified mailing, etc. e. Notice Requirements

33 When bringing an Order to Show Cause, be sure to provide notice to all necessary parties, persons and/or entities required to receive notice in the manner or method as directed by statute or by the court. If applying for injunctive relief, make sure to provide notice as required under 22 NYCRR (f) to all parties, persons and/or entities to be enjoined, as discussed below. f. Applications for Injunctive Relief An application for a temporary restraining order, preliminary injunction, or any kind of relief which would enjoin a person or entity from acting or failing to act must be accompanied by an affidavit or affirmation of the applying attorney stating that notice of the application for injunctive relief is being made, as well as the time and date on which the court will be considering such relief, has been served on the party to be enjoined. CPLR The attorney must set forth the method of notice, or at least any attempts at giving notice, of the time, date, and place that the application will be submitted to the court, and the date, time, and method of such notification. If providing notice to the party to be enjoined would cause substantial prejudice or might even vitiate the need for the injunctive relief the attorney must state as much in her or his affidavit/affirmation (ex: Attorney applies for injunctive relief enjoining a party from selling disputed personal property. By providing notice to the party to be enjoined prior to the TRO being issued by the court, the party may take that opportunity to sell off the personal property at issue, thereby defeating the need for the TRO). The attorney must affirmatively state in the affidavit that there will be significant prejudice by reason of giving notice and describe the facts supporting the existence of immediate and irreparable injury, loss, or damages and that