You are here: / / ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING...
,

ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment was properly denied in this fraudulent conveyance action. The court offered a particularly clear description of how summary judgment motions are analyzed by the appellate courts. Although plaintiff bears the burden of proof at trial, a defendant bringing a motion for summary judgment bears the burden of proof. Gaps in a defendant’s proof require that the motion be denied, without considering the plaintiff’s opposing papers. Therefore a defendant cannot point to gaps in the plaintiff’s proof as a ground for summary judgment in favor of defendant:

​

It is the movant’s burden on a motion for summary judgment to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact”… . Only if the movant succeeds in meeting its burden will the burden shift to the opponent to demonstrate through evidence in admissible form that there exists a triable issue of fact. While the ultimate burden of proof at trial will be borne by the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form … . On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its claim or defense… . Vumbico v Estate of Rose H. Wiltse, 2017 NY Slip Op 09194, Second Dept 12-27-17

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))

You might also like
Criteria for Motion to Amend a Complaint and for the “Relation Back” Doctrine Explained
DEFENDANT FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE BROKEN CURB WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Non-Sex-Offense Committed While On Supervised Released for a Sex Offense Was a “Related Offense” Within the Meaning of Article 10 of the Mental Hygiene Law
DEFENDANT PLED GUILTY TO THE CHARGES IN TWO INDICTMENTS, WITH RESPECT TO ONE OF THE INDICTMENTS, COUNSEL WHO NEGOTIATED THE PLEA OFFER HAD BEEN RELIEVED AS DEFENSE COUNSEL BECAUSE OF A CONFLICT OF INTEREST, CONVICTIONS REVERSED (SECOND DEPT).
OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).
THE JUDGE’S LAW CLERK WAS A DA WHO HAD WORKED ON DEFENDANT’S CASE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING (SECOND DEPT).
Relation Back Doctrine Did Not Apply to Causes of Action in Amended Complaint—Amendment Should Not Have Been Allowed
IN THIS SLIP AND FALL ACTION AGAINST THE PORT AUTHORITY, THE APPLICABLE STATUTE PROVIDES THAT THE NOTICE OF CLAIM MUST BE SERVED AT LEAST 60 DAYS BEFORE THE COMMENCEMENT OF THE ACTION (NOT 60 DAYS AFTER THE ACCRUAL OF THE ACTION); THEREFORE THE NOTICE OF CLAIM WAS TIMELY SERVED (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS... IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE...