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