Summary Judgment in New York
Commercial Litigation.

What Summary Judgment Is

Summary judgment is a procedure that lets a court decide a case, or a claim within a case, without a trial when there is no genuine dispute of material fact. The authority is CPLR 3212. If the evidence shows that one side is entitled to judgment as a matter of law and there is nothing for a jury to decide, the court can grant judgment on the papers. Summary judgment is available after issue has been joined, meaning after an answer has been served. For where the motion fits in the life of a case, see our guide to how long commercial litigation takes in New York.

The Movant's Prima Facie Burden

The party moving for summary judgment carries the initial burden. It must make a prima facie showing of entitlement to judgment as a matter of law, tendering admissible evidence that eliminates any material issue of fact. The Court of Appeals stated the rule in Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). Critically, if the moving party fails to meet that burden, the motion must be denied regardless of the sufficiency of the opposing papers, as the Court held in Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). The movant cannot win by pointing to gaps in the other side's case. It has to affirmatively prove its own entitlement first.

Shifting the Burden

Once the moving party makes its prima facie showing, the burden shifts to the opponent to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact. The Court of Appeals described this in Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Mere conclusions, unsubstantiated allegations, or an attorney's assertions are not enough. The opposing party must come forward with real evidence, affidavits from people with knowledge, documents, deposition testimony, that shows a genuine dispute requiring a trial. If it cannot, summary judgment is granted.

Issue Finding, Not Issue Determination

The court on a summary judgment motion is not allowed to try the case. Its function is issue finding, not issue determination. As the Court of Appeals put it in Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957), the court decides whether a genuine issue of fact exists, not how that issue should be resolved. Because summary judgment denies the opposing party its day in court, New York courts describe it as a drastic remedy that should not be granted where there is any doubt about the existence of a triable issue, a point emphasized in Andre v. Pomeroy, 35 N.Y.2d 361 (1974).

Evidence Viewed in the Light Most Favorable to the Opponent

On a summary judgment motion, the court must view the evidence in the light most favorable to the party opposing the motion and give that party the benefit of every reasonable inference. The Court of Appeals restated the standard in Vega v. Restani Construction Corp., 18 N.Y.3d 499 (2012). The court does not weigh credibility or choose between competing versions of events. If reasonable minds could differ on a material fact, the motion is denied and the dispute goes to trial.

The 120-Day Deadline

There is a hard deadline that traps unprepared litigants. CPLR 3212(a) provides that a summary judgment motion must be made no later than 120 days after the filing of the note of issue, unless the court sets a different date or the movant shows good cause for the delay. In Brill v. City of New York, 2 N.Y.3d 648 (2004), the Court of Appeals held that good cause means a satisfactory explanation for the lateness itself, not merely a meritorious motion. A strong motion filed late, without a good reason for the delay, will not be heard. Calendaring the deadline correctly is essential.

Partial Summary Judgment and Searching the Record

Summary judgment is not all or nothing. Under CPLR 3212(e), a court can grant summary judgment on some claims or issues while leaving others for trial, which can dramatically narrow a case. Under CPLR 3212(b) and related practice, a court can also search the record and grant summary judgment to a non-moving party on an issue that is squarely before it, even without a formal cross-motion. Both features make the motion a flexible tool for shaping what actually goes to trial.

Using the Motion Strategically

Summary judgment is a turning point in commercial litigation. A well-supported motion can end a case, eliminate a damaging claim, or force a favorable settlement. A poorly supported one wastes time and tips your hand. Winning requires a complete evidentiary record, admissible proof on every element, and attention to the 120-day clock. Opposing requires finding the one genuine factual dispute that defeats the motion. The Law Office of Frederic R. Abramson handles summary judgment motions in commercial disputes in the New York Supreme Court.

Frequently Asked Questions

What is summary judgment under CPLR 3212?

Summary judgment is a procedure under CPLR 3212 that allows a court to decide a case or a claim without a trial when there is no genuine dispute of material fact. If the evidence shows one side is entitled to judgment as a matter of law and there is nothing for a jury to decide, the court can grant judgment on the papers. The motion is available after issue has been joined.

Who has the burden on a summary judgment motion?

The moving party has the initial burden. It must make a prima facie showing of entitlement to judgment as a matter of law with admissible evidence that eliminates any material issue of fact, as stated in Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). If the movant fails, the motion is denied no matter how weak the opposition, under Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). Only after the movant succeeds does the burden shift to the opponent.

What does the party opposing summary judgment have to show?

Once the movant makes its prima facie showing, the opponent must produce evidentiary proof in admissible form sufficient to raise a triable issue of fact, as the Court of Appeals held in Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Conclusory statements, unsupported allegations, or an attorney's argument are not enough. The opponent needs real evidence, such as affidavits from people with knowledge, documents, or deposition testimony.

Can a judge decide disputed facts on summary judgment?

No. The court's role is issue finding, not issue determination. As stated in Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957), the court decides only whether a genuine factual dispute exists, not how it should be resolved. It must view the evidence in the light most favorable to the opponent and cannot weigh credibility. If reasonable minds could differ on a material fact, the case goes to trial.

Is there a deadline to move for summary judgment in New York?

Yes, and it is strict. Under CPLR 3212(a), the motion must be made no later than 120 days after the note of issue is filed, unless the court sets another date or the movant shows good cause for the delay. In Brill v. City of New York, 2 N.Y.3d 648 (2004), the Court of Appeals held that good cause means a real explanation for the lateness, not simply that the motion has merit. A late motion without a good reason will not be heard.

Can I win summary judgment on only part of a case?

Yes. Under CPLR 3212(e), a court can grant summary judgment on some claims or issues while leaving others for trial, which can significantly narrow the case. A court can also, in appropriate circumstances, search the record and grant summary judgment to a non-moving party on an issue properly before it. Partial summary judgment is a common and effective way to reduce what actually reaches trial.

Talk to a Commercial Litigation Lawyer in New York

The Law Office of Frederic R. Abramson handles summary judgment and dispositive motion practice in commercial disputes in the New York Supreme Court, across the five boroughs, Nassau, Suffolk, and Orange counties. More than 20 years of daily courtroom experience. The Lawyer's Lawyer.

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Attorney Advertising. Prior results do not guarantee a similar outcome. The information on this page is general and is not legal advice. Consult an attorney about the specific facts of your matter. Law Office of Frederic R. Abramson, 160 Broadway, Suite 500, New York, NY 10038. 212-233-0666.