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kruiz88
Posts: 194
Joined: Sat Aug 14, 2010 1:20 pm

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Postby kruiz88 » Thu Feb 23, 2012 11:42 am

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Last edited by kruiz88 on Wed May 16, 2012 4:38 pm, edited 1 time in total.

sillyboots
Posts: 62
Joined: Thu Jan 19, 2012 12:50 am

Re: Need help with a standard of review q's (Motion for SJ)

Postby sillyboots » Thu Feb 23, 2012 12:16 pm

Surprisingly my westlaw wouldn't let me access it, but might be worth trying secondary source>new york> search summary judgment.. should be a section on appeals in most secondary sources.

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TTH
Posts: 10384
Joined: Mon May 04, 2009 1:14 am

Re: Need help with a standard of review q's (Motion for SJ)

Postby TTH » Thu Feb 23, 2012 12:50 pm

Holy Cow. I ended up spending ten minutes looking for something I thought would take ten seconds. It should not be hard to answer this question. New York practice is crazy.

Anyhow, take a look at

Rothouse v. Association of Lake Mohegan Park Property Owners, Inc.
15 A.D.2d 739, 223 N.Y.S.2d 1012

for a simple statement that summary judgment is subject to de novo review. Seems like the NY practice is that if you fail to raise a factual issue in motion practice for SJ, you don't get to raise it on appeal.

Also, look at NYJUR Appellate §550

truevines
Posts: 198
Joined: Fri Jun 20, 2008 6:16 pm

Re: Need help with a standard of review q's (Motion for SJ)

Postby truevines » Fri Feb 24, 2012 11:56 am

kruiz88 wrote:What is the standard of review on appeal from summary judgment in terms of facts in NY. Is it de novo, as it is a summary judgement, or clearly erroneous, as it normally would be. The only case I found was Duane Reade, Inc. v. Cardtronics, LP
N.Y.A.D. 1 Dept.August 05, 200854 A.D.3d 137 that addresses this question.


In deciding on the motion for summary judgment, a court treats all the factual allegations and affidavits as true. On appeal, a reviewing court reviews the summary judgment de novo. That is, it looks at the records and decides whether there's a issue of material fact.

There's no factual "finding" at the stage of summary judgment, except for undisputed facts. Therefore, a reviewing court should not have to review any factual finding made by the lower court, because there is none.

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fundamentallybroken
Posts: 663
Joined: Mon Dec 20, 2010 11:52 am

Re: Need help with a standard of review q's (Motion for SJ)

Postby fundamentallybroken » Wed Feb 29, 2012 6:06 pm

Nor sure if this is totally correct, but we're doing a NY SJ brief, and were told to use Anderson v. Liberty Lobby, 477 U.S. 242 (1986).




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