New Supreme Court Rule on Summary Judgment Motions: “Just the Facts, Ma’am”
September 11, 2021
Practitioners often choose to practice in the Commercial Division because of its well-documented efficiencies. Thus, many were happy to hear that Chief Administrative Judge Larry Marks issued Administrative Order 270/2020 (“AO 270/20”), which incorporated features of the Commercial Division into the Uniform Civil Rules for the Supreme and County Courts (the “Uniform Rules”). My colleague addressed the highlights of AO 270/20 in a blog post back in January. AO 270/20 went into effect as of February 1, 2021, and courts are now grappling with how to best handle the enforcement of the new rules and attorneys’ compliance with them.
One of the Commercial Division rules making its way over to the non-commercial part is Commercial Division Rule 19-a, which deals with statements of material facts. However, the new rule (Section 202.8-g) as it applies to the non-commercial parts is different from its Commercial Division predecessor insofar as it mandates that there be “annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” This new Rule is not unlike Commercial Division Rule 19-a, except that the Commercial Division leaves to the discretion of the court whether to require a Rule 19-a statement upon the filing of a summary judgment motion (Commercial Division Rule 19-a states that “the court may direct that there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried”). The Uniform Rules do not.
The Supreme Court, Rockland County in Amos Fin. LLC v Crapanzano et al. recently took a harsh stance on a lawyer’s failure to comply with the new Section 202.8-g of the Uniform Rules. On June 11, 2021, four months after AO 270/20 went into effect, plaintiff Amos Financial LLC (“Amos” or “Plaintiff”), brought a motion for summary judgment after allowing the case to linger for almost nine years. Plaintiff’s motion papers did not include a “separate, short and concise statement” of the material facts as to which Plaintiff believed there were no genuine issues of fact, nor did Plaintiff offer an explanation for its failure to do so.
In determining that Plaintiff’s motion was “procedurally defective on its face,” Justice Robert M. Berliner held that Uniform Rule 202.8-g “is not precatory or discretionary in its application: it is a mandate on all summary judgment movants in this State.”
The court explained that a failure to submit a Uniform Rule 202.8-g Statement of Material Facts constitutes a violation that is neither “merely technical nor without prejudice,” nor is it a minor pleading error that courts can correct nunc pro tunc under CPLR 2101 (f) and/or CPLR 2001 (which permit certain minor defects and errors to be corrected). The court opined that the CPLR provisions excusing minor defects cannot redeem a summary judgment movant’s violation of Uniform Rule 202.8-g.
The court further concluded that CPLR 2101 (f) is inapplicable because it applies where “a substantial right of a party is not prejudiced.” In Amos, the court determined that Plaintiff’s failure to submit a Statement of Material Facts prejudiced the defendants by virtue of the fact that the motion papers effectively conceal, in an otherwise voluminous record, the relevant factual allegations and their evidentiary basis. This decision was based, in part, on the fact that the case was not electronically filed, thus requiring respondent and the court to dig through a large paper record without the “substantial efficiency reforms” that Uniform Rule 202.8-g would achieve.
According to Justice Berliner, “[w]ere trial courts to ignore a wholesale Rule 202.8-g violation, courts thereby would peril not just that rule and its constitutional and statutory predicates, but also the other efficiency reforms that the Judiciary enacted with it.”
The Supreme Court ultimately took the hardline approach in denying Amos’ summary judgment motion for, among other things, its failure to comply with the new Uniform Rule 202.8-g.
What you need to know: If you are in the Commercial Division, check the specific Judge’s rules to determine whether they require a Rule 19-A Statement. For matters outside the Commercial Division (in the Supreme Court and County Court), you must include a Statement of Material Fact with your summary judgment motion.
Will the rest of the Supreme Court justices follow in Justice Berliner’s hard-line ruling in enforcing the new Uniform Rule 202.8-g? Stay tuned as we continue to monitor future decisions concerning this new rule.