In moving for summary judgment, it is often tempting to reach for the low hanging fruit. Motions for summary judgment often skip an important step, looking beyond the burden of proof on the motion to the ultimate burden of proof at trial. Most often counsel argue their client is entitled to judgment, not based upon an affirmative showing, but rather that the non-moving party will be unable to meet his or her burden at trial.
The argument is commonly advanced in premises liability cases, particularly the plaintiff’s alleged failure to demonstrate that the defendant created or had actual or constructive notice of a defective condition. A number of recent Appellate Division decisions in this area have underscored the importance of understanding and satisfying this often elusive burden of proof in such cases. This article is offered to assist practitioners in identifying cases in which these pitfalls arise.
Generic Burden of Proof
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