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Defendants will not appeal a MSJ denial...

The following article will explain why... enjoy!



Review of Denial of Summary Judgment on Appeal After Trial
By Thomas R. Newman and Steven J. Ahmuty Jr.
January 5, 2005
New York Law Journal
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.1
Finality is not required.
However, the appeal need not be taken at that time to preserve the issue for appellate review. Indeed, unless you can persuade either the trial judge or the Appellate Division to grant a stay of the trial pending determination of the appeal [generally, a futile task], there is no point in perfecting the appeal from the intermediate order.
An appeal from the final judgment entered on the jury's verdict [or court's decision] after trial will bring up for review the correctness of any intermediate order "which necessarily affects the final judgment."2 An order denying summary judgment falls in this category. Once the final judgment has been entered, no appeal lies from the intermediate order denying summary judgment, and any pending appeal therefrom will be dismissed.3 This is not the end of the matter, however, because the issue of whether the court properly denied the motion for summary judgment will be considered by the Appellate Division in the context of the appeal from the final judgment.
A Fall on 'Black Ice'
For example, in Smith v. Smith,4 a negligence action, plaintiff sought to recover for personal injuries sustained when she slipped and fell on "black ice" in the driveway of premises owned by the defendant's decedent. Following discovery, defendant moved for summary judgment on the ground that decedent lacked notice of a dangerous condition. The court denied the motion and a subsequent jury trial resulted in a verdict and damage award in plaintiff's favor. Defendant appealed from both the judgment after trial and the order which had denied the motion for summary judgment.
The Appellate Division, on the appeal from the judgment, found that defendant's motion for summary judgment should have been granted because plaintiff's opposing papers [an attorney's affidavit and decedent's admissions that she knew it was snowing and that plaintiff would be coming to visit her later in the day] failed to raise a triable issue of fact on the issue of notice.
Accordingly, the judgment was reversed, defendant's motion for summary judgment granted and the complaint dismissed. The appeal from the order was dismissed.
Remember, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. The moving papers must tender sufficient, competent evidence to eliminate from the case any material issues of fact. If such a showing is not made, the motion for summary judgment must be denied, regardless of the sufficiency of the opposing papers.5
The practice in the federal courts in New York is quite different. In federal practice, an order denying summary judgment may not be appealed as of right. Interlocutory decisions may only be appealed by permission, and obtaining permission presents two distinct hurdles.6 First, an application must be made to the district court requesting the court to state in its order that it is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."7 The district court may include such a statement sua sponte.
Armed with such an order, you must then, within 10 days after entry of the district court's order, make an application in the circuit court of appeals, which would have jurisdiction of such an appeal, for permission to appeal from the denial of summary judgment.8
Generally, after a trial on the merits, the federal court of appeals will not review the district court's earlier denial of a motion for summary judgment.9 This is because "a denial of summary judgment is a prediction that the evidence will be sufficient to support a verdict in favor of the nonmovant. ... Once the trial has taken place, [the court's] focus is on the evidence actually admitted, and not on the earlier summary judgment record. ... After trial, the merits should be judged in relation to the fully developed record emerging from that trial. ... We will not at that point step back in time to determine whether a different judgment may have been warranted on the record at summary judgment."10
A Rule 50[a] Motion for Judgment
If you wish to preserve for appeal a challenge to the sufficiency of the evidence, the challenge must be raised in a Rule 50[a], FedRCivP, motion for judgment as a matter of law before the case is submitted to the jury.11 There is an exception to this, however, where the court's denial of summary judgment is not based on the sufficiency of the evidence to create a question of fact for the jury. In such cases, where the motion is based on a pure question of law, the rationale behind Rule 50[a] does not apply and the court of appeals will review the denial of summary judgment even though a Rule 50[a] motion was not made.12
From Rekhi v. Wildwood Indus. Inc., a 1995 case out of the U.S. Circuit Court of Appeals for the Seventh Circuit:
The principle that an order denying summary judgment is rendered moot by trial and subsequent judgment on the merits is intended for cases in which the basis of the denial was that the party opposing the motion had presented enough evidence to go to trial. Defenses are not extinguished merely because presented at the summary judgment stage. If the plaintiff goes on to win, the defendant can reassert the defense on appeal.13
The circuit court of appeals will review de novo the district court's denial of a motion for summary judgment.14 The denial is reversible where there is no genuine dispute over a material fact and the moving party has shown its entitlement to judgment as a matter of law.15
Occasionally, a party against whom a motion for a directed verdict [or to dismiss at the end of the entire case] is made will argue in opposition thereto that the movant had previously made an unsuccessful motion for summary judgment which establishes, as res judicata or the law of the case, that there are questions of fact for the jury. This is not so, as the following example illustrates.
The 'Zook' Case
Zook v. Hartford Acc. & Indem. Co.,16 was an action against an insurer to recover damages for its failure to satisfy a default judgment that plaintiffs had obtained against its insured. Three and one-half months after plaintiffs served the insurer with a copy of that judgment, it disclaimed on the ground that both its insured and the injured plaintiffs had failed to give it timely notice of the accident and suit. Plaintiffs' action was consolidated for trial with a declaratory judgment action instituted by the insurer seeking to be relieved of liability under the policy. At the conclusion of the trial of the declaratory judgment action, the court directed a verdict for the insurer and, as a result of that determination, dismissed plaintiffs' complaint. The Appellate Division reversed, stating with respect to plaintiffs' action, "The factual issues raised at trial should have been submitted to the jury for resolution."17
Instead of proceeding with the retrial of the action, plaintiffs moved for summary judgment. Their motion was denied and plaintiffs once again appealed. This time, the Appellate Division affirmed, stating that "The motion ... was properly denied. Factual issues do indeed exist as to the timeliness of the notice sent to the defendant insurer and the timeliness of the defendant's disclaimer."18
The retrial of the action resulted in a verdict for the defendant, the court having denied plaintiffs' motion for a directed verdict at the end of the case. Plaintiffs appealed for the third time and their persistence was rewarded. The Appellate Division held that plaintiffs' motion for a directed verdict should have been granted since the record made at trial established that the insurer's delay in disclaiming was unreasonable as a matter of law.
A Seeming Inconsistency
The court explained the seeming inconsistency with its earlier decision as follows:
Our affirmance of the order denying summary judgment does not require, as a consequence, that a motion for a directed verdict must be denied at trial. 'A denial of summary judgment is not necessarily res judicata or the law of the case that there is an issue of fact in the case that will be established at trial.'
1. CPLR §[5701[a][2][iv] and [v].
2. CPLR §[5501[a]; Smith v. Smith, 289 AD2d 919, 735 N.Y.S.2d 630, 631 n.1 [3d Dept 2001].
3. Matter of the Estate of Wood, 284 AD2d 875, 727 N.Y.S.2d 716, 717 n.1 [3d Dept 2001]; Matter of Aho, 39 NY2d 241, 383 N.Y.S.2d 285 [1976].
4. 289 AD2d 919, 735 N.Y.S.2d 630, 631 n.1 [3d Dept 2001].
5. Weingrad v. New York University Medical Center, 64 NY2d 851, 853, 487 N.Y.S.2d 316, 317-18 [1985]; Matter of the Estate of Wood, 284 AD2d 875, 727 N.Y.S.2d 716, 717 n.1 [3d Dept 2001].
6. 28 USC §[1292.
7. Ibid..
8. Ibid..
9. Chemetall GMBH v. ZR Energy Inc., 320 F3d 714, 718 [7th Cir. 2003].
10. Ibid.; Watson v. Amedco Steel Inc., 29 F3d 274, 277 [7th Cir. 1994]; Rothstein v. Carriere, F3d , NYLJ, 6/28/04, p.18, 31, col.3 [2d Cir. June 24, 2004].
11. Chemetall, supra,, 320 F3d at 719; Watson, supra, 29 F3d at 279; Rothstein, supra.
12. Chemetall, supra,, 320 F3d at 719 [citing cases from other circuits to the same effect]; Rothstein, supra; Wilson v. Union Pacific R.R. Co., 56 F3d 1226, 1229 [10th Cir. 1995].
13. Rekhi v. Wildwood Indus. Inc., 61 F3d 1313, 1318 [7th Cir. 1995].
14. Wilson v. Union Pacific R.R. Co., 56 F3d 1226, 1229 [10th Cir. 1995].
15. FedRCivP 56[c].
16. 64 AD2d 701, 407 N.Y.S.2d 570 [2d Dept 1978].
17. 53 AD2d 667, 385 N.Y.S.2d 1021 [2d Dept 1976].
18. 55 AD2d 641, 390 N.Y.S.2d 139 [2d Dept 1976].
Thomas R. Newman is of counsel to Duane Morris and author of New York Appellate Practice [Matthew Bender]. Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.
This article originally appeared in the New York Law Journal and is republished here with permission from law.com.


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