It is a well-known principle of New York law that on a summary judgment motion the moving party must demonstrate with admissible evidence that no material issue of fact exists. If that burden is not met, a court has no option but to deny the motion “regardless of the sufficiency of the opposing papers.” See Winegrad v. New York University Med. Cntr., 64 N.Y.2d 851, 853 (1985). The federal rule, while not quite as categorical, is similar: “courts, in considering a motion for summary judgment, must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law.” Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (internal quotation marks omitted).
On the surface, this seems simple enough: summary judgment motions should be properly supported. But it also stands as a signal of caution. If the court erroneously grants summary judgment where the moving party has not met its burden, the moving party may ironically be worse off than if the motion had been denied in the first place. This article explores why that is the case and what litigants and their counsel must do to prevent it.
