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Posts Categorized: Summary Judgment

Posted: January 7, 2018

Summary Judgment Denied; Affidavit that Contradicts a Contemporaneous Document is Not a Sham Affidavit

On January 2, 2018, the First Department issued a decision in Kärst v. W.P. Carey Inc., 2018 NY Slip Op. 00003, holding that an affidavit that contradicted documentary evidence was not a sham affidavit, explaining: Ultimately, the parties dispute the purpose of the payments made between December 2013 and September 2014 and whether defendant did… Read more »

Posted: December 15, 2017

Judge Garaufis Denies Summary Judgment after Applying New York’s Burden-Shifting Analysis in No-Fault “Serious Injury” Claim

District Judge Nicholas G. Garaufis recently denied summary judgment in an automobile accident diversity case where plaintiff claimed a “serious injury” as defined under New York’s no-fault insurance laws. Zhang v. Alvarado, 15-CV-04373 (E.D.N.Y. Dec. 8, 2017) (NGG) (JO). In denying defendants’ summary judgment, Judge Garaufis employed New York State’s burden-shifting analysis that at first… Read more »

Posted: December 14, 2017

Judge Chen Dismisses Slip and Fall Case after Applying Federal Summary Judgment Standard

District Judge Pamela K. Chen recently granted summary judgment in a slip and fall diversity case that highlights the difference between the summary judgment standards under federal and New York state law. Taylor v. Manheim Marketing Inc., 15-CV-01950 (E.D.N.Y. Nov. 30, 2017). This case offers a reminder to counsel that the federal summary judgment standard… Read more »

Posted: November 30, 2017

Court Erred in Converting Motion to Dismiss into Motion for Summary Judgment

On November 28, 2017, the First Department issued a decision in Island Intellectual Prop. LLC v. Reich & Tang Deposit Solutions, LLC, 2017 NY Slip Op. 08311, holding that the motion court erred in converting a motion to dismiss into a motion for summary judgment, explaining: The motion court should not have entertained plaintiffs’ cross… Read more »

Posted: October 27, 2017

Summary Judgment in Lieu of Complaint Precluded by Evidence of Lack of Consideration and Fraud

On October 11, 2017, the Second Department issued a decision in Denjonbklyn, Inc. v. Rojas, 2017 NY Slip Op. 07107, holding that a motion for summary judgment in lieu of complaint was properly dismissed because of questions of consideration and fraud in the inducement, explaining: CPLR 3213 provides a means of obtaining an accelerated judgment… Read more »

Posted: August 1, 2017

Court Denies Summary Judgment Motion Due to Defendant’s Failure to Attend Deposition

On July 25, 2017, Justice Ostrager of the New York County Commercial Division issued a decision in Zoullas v. Zoullas, 2017 NY Slip Op. 31574(U), finding that a plaintiff’s claims were time-barred but nonetheless refusing to grant summary judgment because of the defendant’s failure to appear for deposition despite having been ordered to do so,… Read more »

Posted: February 17, 2017

Guarantee of Borrower’s Obligations Under Agreement Not Document Amenable to CPLR 3213 Action

On February 14, 2017, the First Department issued a decision in PDL Biopharma, Inc. v. Wohlstadter, 2017 NY Slip Op. 01151, holding that a guarantee of a borrower’s contractual obligations was not an instrument amenable to summary judgment in lieu of complaint under CPLR 3213, explaining: The prototypical example of an instrument within the ambit… Read more »

Posted: September 23, 2016

If Defendant Fails to Make Prima Facie Case, Court Need Not Consider Plaintiff’s Opposition

On September 14, 2016, the Second Department issued a decision in Katz v. Beil, 2016 NY Slip Op. 05977, denying defendants’ motion for summary judgment for failure to show a prima facie entitlement to judgment, explaining: In determining the individual defendants’ motion for summary judgment, the Supreme Court concluded that judgment as a matter of… Read more »

Posted: September 19, 2016

Promissory Note’s Reference to Sales Contracts Does Not Defeat Summary Judgment

On September 6, 2016, Justice Oing of the New York County Commercial Division issued a decision in Kardemir Ithalat Ihracat Ltd. Sti. v. Uniwire Trading LLC, 2016 NY Slip Op. 31681(U), holding that a promissory note’s reference to the terms of related sales contracts did not preclude the grant of summary judgment in lieu of… Read more »