Summary Judgment continue...

I. WHY MAKE A MOTION FOR SUMMARY JUDGMENT?

FACTORS TO CONSIDER

One of the more important factors that has to be considered in every labor law case is whether a jury will be allowed to hear evidence on how the accident occurred.

Many construction accident claims brought under the 'absolute liability' provisions of the Labor Law involve a plaintiff who has contributed to the happening of the accident and, thus, can be blamed for some or even most of his/her damages. The perplexing problem of how to handle this issue at trial (i.e., the jury being told to ignore the workers own fault) will be completely eliminated. If judgment on the issues of liability is granted, the manner in which the accident took place, including plaintiff's comparative fault, is now irrelevant to the issues of damages.

When a plaintiff is granted summary judgment on the issues of liability it will enhance the value of the case. If the only issue that needs to be resolved is how much the defendant owes, the plaintiff's task of securing the highest settlement value on the case is made easier. The defense side will be more focused and have less to talk about during the negotiations.

Also, CPLR 5001 and 5002 requires that interest be calculated from the date judgment on the issue of liability is established, even though the verdict on damages is resolved at a later date. Thus, if plaintiff obtains Summary Judgment on May 1, 2001 and proceeds with an assessment of damages, which is not resolved until September 1, 2002, plaintiff will be able to collect 12% interest over the 16-month period. If the verdict on damages is one million dollars ($1,000,000), then that interest amounts to $120,000!

On a Motion for Summary Judgment the defendant must come forward with proof, in admissible form, to create an issue of fact. Even if the motion is not granted, the plaintiff will gain valuable information about the defendant's case. Thus, the plaintiff will get the best form of discovery the CPLR permits, an opportunity to learn first-hand what the defendant's theory is, and how they will attempt to prove it.

In the past few years the Court of Appeals has rendered several decisions on the Labor Law. By and large these decisions have not been plaintiff friendly and some of them have even eliminated what only a few years ago would have been considered to be an absolute winner. One of the most striking examples was the Narducci decision. Until the Narducci decision, it was generally accepted that workers who were injured by objects falling from an elevated surface were well within the scope of §240(1) protection. Narducci, however, limited recovery to only those circumstances where the worker is struck by an object which falls while in the process of being hoisted or secured. Thus a plaintiff who is injured by a falling tool or piece of construction material temporarily stored on the roof of a building can have their §240(1) completely dismissed. In line with this trend, the Court in Long pronounced that section 241(6) was not an absolute liability provision and that contributory negligence was a valid defense; thus, it dramatically changed construction accident liability overnight. Similarly, in Ross, the Court imposed requirements that the plaintiff's injury flow directly from the forces of gravity in order to spell out a violation of §240, and that a concrete/specific Industrial Code Rule violation must be alleged and proven in order to recover under §241(6). This decision significantly circumscribed the scope of the labor law resulting in the dismissal of many pending claims. A more recent example of a sudden change in the law is Joblon decision which held that there must be a "significant physical change to the configuration or composition of the building structure" before the work can be found to constitute "alteration" of a building or structure as the term is used in §240. With the recent fervor raised in the Legislature by the insurance industry and the builders association, we should anticipate more defense oriented judicial decisions in the near future.

II. WHEN TO MAKE YOUR MOTION: BEFORE OR AFTER THE NOTE OF ISSUE?

A. LAW GOVERNING

CPLR Rule 3212 was amended effective January 1, 1997. It now sets forth the time frame in which a summary judgment motion is to be made.

Rule 3212. Motion for summary judgment

(a) Time; kind of action. [Effective January 1, 1997, as amended by L.1996, c.492.] Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

B. SHOULD THE MOTION BE MADE BEFORE OR AFTER THE NOTE OF ISSUE IS FILED?

PRACTICAL CONSIDERATIONS:

1) BEFORE NOTE OF ISSUE:

a) Prior to Depositions. There is no requirement that motions be made after all depositions have been taken. Nothing in the CPLR, or case law, requires that depositions be taken, even of the plaintiff, before a motion can be made or granted. However, in the current atmosphere, which is not at all favorable to the plaintiff's bar, making a motion prior to deposition may actually result in delaying the ultimate decision of the case. If the motion is denied the major issues in the case will have been identified before any testimony of crucial witnesses are taken. These witnesses will now be able to use the decision to guide their responses through the discovery process. If the motion is grated the plea by the defendant for a reversal on the grounds that it would be unjust to deny the defendant an opportunity to gather necessary information through the discovery process in order to properly respond to the plaintiff's motion is likely to strike a sympathetic response on the appeal.

b) After Discovery but before Note of Issue. If there is any concern at all of losing the motion, and further discovery would be needed if the matter is tried, the most appropriate time to move for S/J is just prior to the note of issue being filed. After all, paper discovery has been exchanged and depositions have been taken. Thus, if further issues are identified (and the motion is denied), there's still exist an opportunity for further discovery.

2) AFTER FILING NOTE OF ISSUE:

a) By making the motion after the note of issue and statement of readiness is filed, the party opposing the motion cannot claim that further discovery is needed as a basis to deny the motion. Also, at least in most jurisdictions, the case will be moving up the calendar to a trial date while the motion is being decided; thus the pending motion does not delay the ultimate resolution of the case.

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