NYP 9

Card Set Information

Author:
paul
ID:
23251
Filename:
NYP 9
Updated:
2010-06-12 18:17:44
Tags:
Motion Summary Judgment
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Description:
NYP 9 - Motion for Summary Judgment
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  1. MOTION FOR SUMMARY JUDGMENT

    1) When is the motion appropriate?

    2) When can the motion be made?

    3) When must the motion be made?
    1 APPROPRIATE when there is no genuine issue of material fact requiring a trial

    2 MAY BE MADE after ∆ serves his Answer

    3 MUST BE MADE within 120 DAYS from filing of the Note of Issue, which puts the case on the court's calendar. (may be able to make motion outside of deadline for "good cause")
  2. MOTION FOR SUMMARY JUDGMENT

    If the court concludes that the nonmovant, rather than the movant, is entitled to SJ on an issue presented, may the court grant SJ to the nonmovant?
    YES

    This is known as SEARCHING THE RECORD. In a summary judgment motion, a court reviews all of the evidence in the record, regardless of which side submitted it, and can deny the motion OR enter judgment for the nonmoving party if all the evidence in the record supports it.
  3. MOTION FOR SUMMARY JUDGMENT

    If the only remaining issue of fact concerns damages, can a court grant partial summary judgment?
    YES

    A court can grant partial summary judgment on the issue of a party's liability, and order immediate trial on the issue of damages.
  4. MOTION FOR SUMMARY JUDGMENT

    Is a motion for summary judgment ever allowed prior to service of the answer?
    YES—in the following two cases

    1) CONVERSION OF A MOTION TO DISMISS

    • Court can cover motion to dismiss into motion for SJ
    • Allows decision to be based on evidence (merits), rather than the sufficiency of the claim
    • Parties must have submitted factual affidavits in connection with the motion
    • Court must give advanced notice of conversion to allow them to oppose

    2) IN LIEU OF COMPLAINT—in two types of actions, the PLAINTIFF may move for SJ at the same time she serves process

    • Action based on instrument for payment of money only
    • Action on an out-of-state judgment (full-faith-and-credit)

    π must provide 20 days advanced notice of motion if served by personal delivery in NY (30 days for all other forms of service)

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