New York Law Review

Tag: Motion Practice

  • 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.

  • Hertz Corp. v. Dahill Moving and Storage Co., 54 N.Y.2d 619 (1981): Summary Judgment Against a Party Who Opened the Door

    54 N.Y.2d 619 (1981)

    A party who moves for summary judgment exposes themselves to a summary judgment award against them, especially when they are apprised of motions seeking a declaration of their sole liability.

    Summary

    Hertz Corporation sued Dahill Moving and Storage Co., Inc. North River Insurance Company, a third-party defendant, moved for summary judgment against Dahill. W.M. Ross and Co., Inc., another third-party defendant, subsequently moved for summary judgment, seeking a declaration that North River was solely liable to Dahill under the insurance policy. The Court of Appeals affirmed the lower court’s decision, holding that North River, by moving for summary judgment against Dahill, opened itself up to an award of summary judgment in favor of Dahill. Further, North River was aware of Ross’s motion arguing for North River’s sole liability, negating any claim of being unfairly surprised by the judgment against them.

    Facts

    Hertz Corporation initiated a lawsuit against Dahill Moving and Storage Co., Inc. Subsequently, North River Insurance Company was brought into the case as a third-party defendant. North River then moved for summary judgment against Dahill. Following this, W. M. Ross and Co., Inc., another third-party defendant, filed a motion for summary judgment. Ross sought a declaration from the court that North River was solely liable and obligated to Dahill under the terms of an insurance policy that North River had issued to Dahill.

    Procedural History

    The lower court granted summary judgment against North River Insurance Co. North River appealed, arguing that it was not properly notified about the motion for summary judgment against it. The New York Court of Appeals affirmed the lower court’s order.

    Issue(s)

    Whether the award of summary judgment against North River Insurance Company was affected by an error of law, considering North River’s claim that it was not adequately apprised of the motion for summary judgment against it.

    Holding

    No, because North River, by moving for summary judgment against Dahill, exposed itself to a potential summary judgment award in favor of Dahill. Furthermore, North River was aware of W.M. Ross and Co.’s motion seeking a declaration that North River was solely liable, thus it cannot claim lack of notice.

    Court’s Reasoning

    The Court of Appeals reasoned that North River Insurance Company’s claim of not being apprised of the motion for summary judgment was without merit. By initially moving for summary judgment against Dahill, North River subjected itself to the possibility of a summary judgment award against it. The court emphasized that North River was aware of the motion by W. M. Ross and Co., Inc., which sought a declaration that North River was solely liable to Dahill under the insurance policy. This awareness negated any potential argument that North River was unfairly surprised by the summary judgment against them. The court concluded that, given these circumstances, the award of summary judgment against North River was not affected by any error of law. In essence, the court applied a principle of procedural fairness, stating that a party initiating a legal action opens themselves to responsive actions within the scope of the litigation. The court’s decision does not delve into the specific policy considerations, but it underscores the importance of being prepared for potential counter-actions when initiating a legal motion.