Summary affirmation is a procedural means of affirming a lower decision without hearing further argument. Summary affirmations are governed by state and federal laws, which vary by jurisdiction.
Appellate court judges themselves estimate that only about 35% of the summary judgments granted are reversed on appeal. Those are terrible odds, but if you pay attention and do the best job possible, you improve your chances enormously.
In New York state practice, an order of the Supreme Court denying a motion for summary judgment is immediately appealable to the Appellate Division, as of right, by the unsuccessful movant. Finality is not required.
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[21] A defendant wishing to oppose summary judgment has to invoke the procedure set out in Rule 32 (3) which provides it with the following steps to follow, namely; that: (a) he must provide to the plaintiff security to the satisfaction of the Registrar, for any judgment including costs which may be given[2] or (b) he ...
On the contrary, summary judgment motions that try to resolve intent or state of mind, issues of causation, or whether negligence has been committed, are harder to win because issues of disputed facts can be easier found in those cases.
Setting aside order for summary judgment 8.1 If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied (see also rule 23.11).
May I Immediately Appeal In New York From An Order Denying My Motion To Dismiss A Lawsuit? Yes. In the New York state courts, an order denying a defendant's pretrial motion to dismiss the plaintiff's complaint, N.Y. C.P.L.R. 3211, is immediately appealable as of right.
Finality, in law, is the concept that certain disputes must achieve a resolution from which no further appeal may be taken, and from which no collateral proceedings may be permitted to disturb that resolution.
What regularly happens after a summary judgment application, even if unsuccessful, is that the parties enter into settlement discussions and the matter resolves so that the parties can move on with their lives. The system is designed to resolve disputes so that people can get on with their lives.
Is a Summary Judgment A Good Thing? Either a defendant or a plaintiff can request a summary judgment. Although a summary judgment is a favorable result for the motioning party, it can be detrimental for the opponent.
When a motion for summary judgment is denied, the nonmoving party achieves a form of premium that enables a case to settle for an additional amount. Put simply, the settlement value of a case increases when a motion for summary judgment is denied. Thus, denials of summary judgment up the ante in the litigation game.
Is a Summary Judgment A Good Thing? Either a defendant or a plaintiff can request a summary judgment. Although a summary judgment is a favorable result for the motioning party, it can be detrimental for the opponent.
What regularly happens after a summary judgment application, even if unsuccessful, is that the parties enter into settlement discussions and the matter resolves so that the parties can move on with their lives. The system is designed to resolve disputes so that people can get on with their lives.
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Setting aside order for summary judgment 8.1 If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied (see also rule 23.11).
Bentsian RATUT et al., Plaintiffs, v. Baljit SINGH et al., Defendants.
Roberta D. Asher, P. C., Staten Island, for plaintiffs. Norman Volk & Associates, P. C., New York City, for defendants.
A defendant can establish entitlement to summary judgment with regard to all categories of serious injury by negating causation, meaning by the tender of evidence establishing that the injuries alleged are not related to the accident at issue (Pommells v Perez, 4 NY3d 566, 573-574 [2005]; Franchini at 537; Marsh v City of New York, 61 AD3d 552, 552 [1st Dept 2009]; Kaplan v Vanderhans, 26 AD3d 468, 469 [2d Dept 2006]; Giraldo v Mandanici, 24 AD3d 419, 419-420
Once a defendant establishes that a plaintiff has not suffered a serious injury, summary judgment is warranted unless plaintiff can establish the existence of a serious injury. To that end, plaintiff must establish that the injuries alleged are the result of the accident claimed and that the limitations alleged are the result of those injuries (Noble v Ackerman, 252 AD2d 392, 394-395 [1st Dept 1998]). Plaintiff's proof establishing serious injury, medical or otherwise, must not only be admissible, but it must also be objective (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 350 [2002]; Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Blackmon v Dinstuhl, 27 AD3d 241, 242 [1st Dept 2006]; Thompson v Abassi, 15 AD3d 95, 97 [1st Dept 2005]; Shinn at 198; Andrews v Slimbaugh, 238 AD2d 866, 867-868 [2d Dept 1997]; Zoldas v Louise Cab Corporation, 108 AD2d 378, 382 [1st Dept 1985]). Plaintiff's proof must also demonstrate the existence of a serious injury contemporaneous with the accident alleged (Blackmon at 242; Thompson at 98 [Court held that the failure by plaintiff's doctor to provide objective proof of injury contemporaneous with the accident was fatal and was not cured by same doctor's finding of injury, with objective evidence, two and one half years later.); Nemchyonok v Ying, 2 AD3d 421, 421 [2d Dept 2003]; Pajda v Pedone, 303 AD2d 729, 730 [2d Dept 2003]; Jimenez v Kambli, 272 AD2d 581, 583 [2d Dept 2000]). Such contemporaneous medical evidence, however, can be an expert's designation of a numeric percentage of a plaintiff's loss of range of motion or "an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure at 350; see also Perl v Meher, 18 NY3d 208, 218 [2011] ["We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."]). Additionally, in order to raise an issue of fact as to the existence of a serious injury the medical evidence presented must include a recent examination of the plaintiff at which the injuries are objectively established (Bent v Jackson, 15 AD3d 46, 48 [1st Dept 2005]; Thomson v Abassi, 15 AD3d 95, 97 [1st Dept 2005]; Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000]).
In this action for personal injuries arising from an automobile accident, defendants move for an order granting them summary judgment and dismissing plaintiff's complaint on grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d). Plaintiff opposes the instant motion asserting that defendants fail to establish prima facie entitlement to summary judgment and that questions of fact on the existence of a serious injury nevertheless preclude summary judgment.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).
On this record, defendants establish prima facie entitlement to summary judgment under the permanent categories of injury by tendering objective medical evidence demonstrating the absence of any injury, let alone a serious one and by establishing a significant gap in plaintiff's medical treatment. Defendants also demonstrate prima facie entitlement to summary judgment under the 90/180 non-permanent category of injury by tendering plaintiff's own pleading which demonstrate that in the 180 days following her accident, her activities of daily living were not curtailed to the requisite degree or for the required duration as well as her deposition testimony evincing the same. Indeed, at best, on this record, plaintiff missed 10 days of work. Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. Fatally, plaintiff's evidence, fails to establish the existence of any injury contemporaneously with the instant accident. Moreover, with regard to the permanent categories of injury inasmuch as no evidence submitted explains the gap in treatment. With respect to the 90/180 category, nothing submitted establishes the existence of a
Because any injury not falling within the statute's definition of "serious injury" is minor, it should not be accorded a trial by jury , and, therefore, " [i]t is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute" (id. at 237).
To be sure, plaintiff testified the only missed 10 days of work; woefully short of the 90 days required by law. Notably, the Court finds no merit to plaintiff's assertion that, here, she never stopped treating because she continued to perform exercises and/or therapy at home and on her own.
A defendant can establish entitlement to summary judgment with regard to all categories of serious injury by negating causation, meaning by the tender of evidence establishing that the injuries alleged are not related to the accident at issue (Pommells v Perez, 4 NY3d 566, 573-574 [2005]; Franchini at 537; Marsh v City of New York, 61 AD3d 552, 552 [1st Dept 2009]; Kaplan v Vanderhans, 26 AD3d 468, 469 [2d Dept 2006]; Giraldo v Mandanici, 24 AD3d 419, 419-420
Once a defendant establishes that a plaintiff has not suffered a serious injury, summary judgment is warranted unless plaintiff can establish the existence of a serious injury. To that end, plaintiff must establish that the injuries alleged are the result of the accident claimed and that the limitations alleged are the result of those injuries (Noble v Ackerman, 252 AD2d 392, 394-395 [1st Dept 1998]). Plaintiff's proof establishing serious injury, medical or otherwise, must not only be admissible, but it must also be objective (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 350 [2002]; Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Blackmon v Dinstuhl, 27 AD3d 241, 242 [1st Dept 2006]; Thompson v Abassi, 15 AD3d 95, 97 [1st Dept 2005]; Shinn at 198; Andrews v Slimbaugh, 238 AD2d 866, 867-868 [2d Dept 1997]; Zoldas v Louise Cab Corporation, 108 AD2d 378, 382 [1st Dept 1985]). Plaintiff's proof must also demonstrate the existence of a serious injury contemporaneous with the accident alleged (Blackmon at 242; Thompson at 98 [Court held that the failure by plaintiff's doctor to provide objective proof of injury contemporaneous with the accident was fatal and was not cured by same doctor's finding of injury, with objective evidence, two and one half years later.); Nemchyonok v Ying, 2 AD3d 421, 421 [2d Dept 2003]; Pajda v Pedone, 303 AD2d 729, 730 [2d Dept 2003]; Jimenez v Kambli, 272 AD2d 581, 583 [2d Dept 2000]). Such contemporaneous medical evidence, however, can be an expert's designation of a numeric percentage of a plaintiff's loss of range of motion or "an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure at 350; see also Perl v Meher, 18 NY3d 208, 218 [2011] ["We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."]). Additionally, in order to raise an issue of fact as to the existence of a serious injury the medical evidence presented must include a recent examination of the plaintiff at which the injuries are objectively established (Bent v Jackson, 15 AD3d 46, 48 [1st Dept 2005]; Thomson v Abassi, 15 AD3d 95, 97 [1st Dept 2005]; Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000]).
In this action for personal injuries arising from an automobile accident, defendants move for an order granting them summary judgment and dismissing plaintiff's complaint on grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d). Plaintiff opposes the instant motion asserting that defendants fail to establish prima facie entitlement to summary judgment and that questions of fact on the existence of a serious injury nevertheless preclude summary judgment.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).
On this record, defendants establish prima facie entitlement to summary judgment under the permanent categories of injury by tendering objective medical evidence demonstrating the absence of any injury, let alone a serious one and by establishing a significant gap in plaintiff's medical treatment. Defendants also demonstrate prima facie entitlement to summary judgment under the 90/180 non-permanent category of injury by tendering plaintiff's own pleading which demonstrate that in the 180 days following her accident, her activities of daily living were not curtailed to the requisite degree or for the required duration as well as her deposition testimony evincing the same. Indeed, at best, on this record, plaintiff missed 10 days of work. Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. Fatally, plaintiff's evidence, fails to establish the existence of any injury contemporaneously with the instant accident. Moreover, with regard to the permanent categories of injury inasmuch as no evidence submitted explains the gap in treatment. With respect to the 90/180 category, nothing submitted establishes the existence of a
Because any injury not falling within the statute's definition of "serious injury" is minor, it should not be accorded a trial by jury , and, therefore, " [i]t is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute" (id. at 237).
To be sure, plaintiff testified the only missed 10 days of work; woefully short of the 90 days required by law. Notably, the Court finds no merit to plaintiff's assertion that, here, she never stopped treating because she continued to perform exercises and/or therapy at home and on her own.