New York Law Review

Tag: affidavits

  • Weissman v. Blue Cross, 486 N.E.2d 912 (N.Y. 1985): Discretion to Consider Late Affidavits in Summary Judgment

    Weissman v. Blue Cross, 486 N.E.2d 912 (N.Y. 1985)

    A trial court does not abuse its discretion when it refuses to consider a late affidavit submitted in opposition to a motion for summary judgment, especially when the delay is due to a failure to recognize the necessity of the affidavit and the opposing party objects.

    Summary

    Weissman sued Blue Cross. Blue Cross moved for summary judgment. On the day the motion was to be submitted, but after the motion was marked submitted, Weissman’s attorney delivered Weissman’s affidavit to the judge’s law secretary, claiming it was inadvertently omitted. Blue Cross objected and requested an opportunity to reply if the affidavit was considered. The New York Court of Appeals held that the Special Term’s refusal to consider Weissman’s affidavit was not an abuse of discretion, given the circumstances of the delay and the lack of prior notice of the affidavit.

    Facts

    Weissman sued Blue Cross. Blue Cross filed a motion for summary judgment against Weissman. Weissman’s attorney submitted an affirmation opposing the motion weeks before the return date, attaching several documents but omitting an affidavit from Weissman himself. Weissman’s cross-motion for summary judgment, filed six days before the return date, also did not mention an affidavit from Weissman. After the motion was marked as submitted, Weissman’s attorney delivered Weissman’s affidavit to the judge’s law secretary. Blue Cross did not receive a copy until the next day and promptly objected, requesting an opportunity to reply if the court considered it.

    Procedural History

    Blue Cross moved for summary judgment in Special Term. Weissman attempted to submit a late affidavit. Special Term refused to consider the late affidavit and granted summary judgment for Blue Cross. The Appellate Division affirmed. Weissman appealed to the New York Court of Appeals.

    Issue(s)

    Whether Special Term abused its discretion as a matter of law by refusing to consider an affidavit of the plaintiff which was delivered to the Judge’s law secretary on the same day as, but several hours after, the motion was marked “submitted” on call of the calendar, because it had been inadvertently omitted from plaintiff’s papers.

    Holding

    No, because the inadvertence involved failing to realize the necessity for an affidavit from the party and because the defendant objected to its consideration and requested an opportunity to reply.

    Court’s Reasoning

    The Court of Appeals reasoned that the critical error was not a mere oversight in enclosing a prepared affidavit, but a failure to recognize the need for Weissman’s personal affidavit in the first place. The court emphasized that Weissman’s attorney’s affirmation, prepared well in advance, did not refer to any intention to submit Weissman’s affidavit. Similarly, the cross-motion for summary judgment made no mention of it. Furthermore, Blue Cross’s motion included a CPLR 2214 (b) notice, requiring answering papers to be served at least five days before the return date, which was not met. Considering these factors, the court concluded that Special Term acted within its discretion in refusing to consider the late affidavit. The court cited Zuckerman v City of New York, 49 NY2d 557 which likely stands for the proposition that an attorney’s affidavit without personal knowledge is insufficient to oppose summary judgment. The court implicitly held that the trial court is not required to allow supplemental submissions after the motion has been marked submitted, especially when the opposing party would be prejudiced. The decision underscores the importance of timely and complete submissions in motion practice and the discretion afforded to trial courts in managing the motion calendar.

  • Zodiac Petroleum, S.A. v. Race Rederiet, 392 N.Y.S.2d 862 (1977): Summary Judgment Requires Raising Triable Issues in Affidavits

    Zodiac Petroleum, S.A. v. Race Rederiet, 392 N.Y.S.2d 862 (1977)

    On a motion for summary judgment, the opposing party must demonstrate a triable issue of fact through pleadings and affidavits; arguments raised only in briefs or post-argument memoranda are insufficient to defeat summary judgment.

    Summary

    Zodiac Petroleum, S.A. (insurer) sued Race Rederiet (assured) to recover unpaid insurance premiums. The assured moved for summary judgment, arguing English law barred direct actions for nonpayment. The insurer countered that the suit was for breach of contract (failure to declare shipments), not unpaid premiums. The assured then asserted that, even under this theory, English law imposed no obligation to declare all shipments. The insurer failed to refute this assertion in its affidavits, instead arguing the assured’s point was irrelevant. The New York Court of Appeals affirmed the grant of summary judgment to the assured, holding the insurer failed to raise a triable issue of fact in its affidavits.

    Facts

    The insurer, Zodiac Petroleum, S.A., sought to recover premiums allegedly owed by the assured, Race Rederiet, under a marine insurance policy. The insurer claimed the assured failed to declare all shipments that should have been covered. The assured denied the allegations and asserted an affirmative defense based on English law. The assured contended that under English law, the insurer could not directly sue the assured for unpaid premiums but had to proceed through the procuring broker.

    Procedural History

    The assured moved for summary judgment based on the argument that English law barred the insurer’s direct action for unpaid premiums. The insurer opposed the motion, arguing that the complaint was for breach of contract, not unpaid premiums. The assured responded that even under the breach of contract theory, English law imposed no obligation to declare all shipments. The insurer did not refute this legal assertion in its reply affidavits. The lower court granted summary judgment to the assured, and the Appellate Division affirmed. The insurer appealed to the New York Court of Appeals.

    Issue(s)

    Whether the insurer, in opposing the motion for summary judgment, raised a triable issue of fact by failing to controvert the assured’s assertion of applicable English law in its affidavits.

    Holding

    No, because the insurer failed to controvert the assured’s assertion of applicable English law in its affidavits; arguments presented solely in briefs or post-argument memoranda cannot create a triable issue where the affidavits fail to do so.

    Court’s Reasoning

    The Court of Appeals held that the insurer failed to raise a triable issue of fact because it did not dispute the assured’s assertion of English law in its affidavits. The court emphasized that summary judgment is to be determined based on all the papers before the court, including pleadings and affidavits. The court stated, “Resort may not now be had to briefs or postargument memoranda to supplement the record or to import a triable issue not otherwise presented.” The court also noted that the assured’s notice of motion did not limit the grounds for summary judgment, and the insurer itself had argued that the theory of the complaint had been misapprehended. The court implicitly relied on CPLR 3212(b), which specifies that summary judgment shall be granted if “the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” and requires that the motion be supported by affidavit, a copy of the pleadings, and other available proof. The court also cited CPLR 3212(f) which allows for denial of summary judgment if facts essential to justify opposition may exist but cannot then be stated. By not invoking CPLR 3212(f) and adequately rebutting the assured’s assertions in affidavit form, the insurer failed to meet its burden. The Court thus reasoned that the absence of a factual dispute shown in the affidavits justified the grant of summary judgment.