Supreme Court Rules
Rule 74 - Rules of Civil Procedure - Rules Governing Civil Procedure in the Circuit Courts - Judgments Orders and Proceedings Thereon
Publication / Adopted Date:
May 22, 1987
Revised / Effective Date:
July 1, 2008
4.04. Summary Judgment
At any time after the expiration of thirty days from the commencement of the action or after service of a motion for summary judgment by the adverse party, a party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may move with or without supporting affidavits for a summary judgment upon all or any part of the pending issues.
For Defending Party.
At any time, a party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may move with or without supporting affidavits for a summary judgment as to all or any part of the pending issues.
(c) Motions and Proceedings Thereon.
Motions for Summary Judgment.
A motion for summary judgment shall summarily state the legal basis for the motion.
A statement of uncontroverted material facts shall be attached to the motion. The statement shall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts. An electronic copy of the statement of uncontroverted material facts in a commonly used medium, such as a diskette, CD-ROM or e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher, shall be served on the party to whom the motion for summary judgment is directed. In addition to the information normally in a certificate of service, the certificate of service shall also state the format of the electronic copy and the medium used to transmit the electronic copy to the responding party.
Attached to the statement shall be a copy of all discovery, exhibits or affidavits on which the motion relies.
Movant shall file a separate legal memorandum explaining why summary judgment should be granted.
Responses to Motions for Summary Judgment.
Within 30 days after a motion for summary judgment is served, the adverse party shall serve a response on all parties. The response shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant's factual statements.
A denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.
Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies.
A response that does not comply with this Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement is an admission of the truth of that numbered paragraph.
The response may also set forth additional material facts that remain in dispute, which shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).
An electronic copy of the response shall be served as provided in Rule 74.04(c)(1).
The response may include a legal memorandum explaining the legal or factual reasons why summary judgment should not be granted.
Replies in Support of Motions for Summary Judgment.
Within 15 days after service of the response, the movant may file a reply memorandum of law explaining why summary judgment should be granted.
Within the same time, if the adverse party's response sets forth additional material facts that remain in dispute, movant shall set forth each additional statement of fact in its original paragraph number and immediately thereunder admit or deny each such factual statement. Denials shall be supported in the manner prescribed by Rule 74.04(c)(2).
Within the same time, the movant may file a statement of additional material facts as to which movant claims there is no genuine issue. The statement shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).
An electronic copy of the reply shall be served as provided in Rule 74.04(c)(1).
Attached to the supplemental statement shall be a copy of any additional discovery, exhibits or affidavits on which the supplemental statement relies.
Sur-replies in Opposition to Motions for Summary Judgment.
Within 15 days of service, if movant files a statement of additional material facts pursuant to Rule 74.04(c)(3), the adverse party shall file a sur-reply.
The sur-reply shall set forth each additional statement of fact in its original paragraph number and immediately thereunder admit or deny each such factual statement. The sur-reply shall be in the form and shall be supported in the manner prescribed by Rule 74.04(c)(2).
An electronic copy of the sur-reply shall be served as provided in Rule 74.04(c)(1).
Attached to the sur-reply shall be a copy of any additional discovery, exhibits or affidavits on which the sur-reply relies.
A sur-reply that does not comply with Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement of additional material facts is an admission of the truth of that numbered paragraph.
If the movant files a statement of additional material facts, the adverse party may file within the same time a sur-reply memorandum of law explaining the legal or factual reasons why summary judgment should not be granted.
No other papers with respect to the motion for summary judgment shall be filed without leave of court.
Rulings on Motions for Summary Judgment.
After the response, reply and any sur-reply have been filed or the deadlines therefor have expired, the court shall decide the motion.
If the motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, the court shall enter summary judgment forthwith.
A summary judgment, interlocutory in character, may be entered on any issue, including the issue of liability alone, although there is a genuine issue as to the amount of the damages.
Case Not Fully Adjudicated on Motion.
If on motion under this Rule 74.04 judgment is not entered upon the whole case or for all the relief asked and a trial is necessary, the court by examining the pleadings and the evidence before it, by interrogating counsel, and by conducting a hearing, if necessary, shall ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. The court shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
Form of Affidavit.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
When Affidavits Are Unavailable.
Should it appear from the affidavits of a party opposing the motion that for reasons stated in the affidavits facts essential to justify opposition to the motion cannot be presented in the affidavits, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Affidavit Made in Bad Faith.
Should it appear to the satisfaction of the court at any time that any affidavit presented pursuant to this Rule 74.04 is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party presenting it to pay to the other party the amount of the reasonable expenses that the filing of the affidavit caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
(Adopted May 22, 1987, eff. Jan. 1, 1988. Amended June 1, 1993, eff. Jan. 1, 1994; Sept. 28, 1993, eff. Jan. 1, 1994; February 27, 2002, eff. Jan. 1, 2003; Amended Dec. 18, 2007, eff. July 1, 2008)
COMMITTEE NOTE - 1959
This rule is the same as Rule 56 of the Federal Rules of Civil Procedure with the amendments to paragraphs (c) and (e) recommended by the Federal Advisory Committee in 1955; and with the addition of paragraph (h) to make clear that the procedure is not applicable where there is a factual issue to be determined by the court or jury. The reasons for the amendments to paragraphs (c) and (e) are stated by the Federal Advisory Committee as follows:
"Subdivision (c). The specific provision, made by the amendment, allowing summary judgment to be granted against the party who has moved therefore, is in accord with N.Y.C.P. Rule 113 and Wis.Stat. Sec. 270.635(3) (1951), as well as the urging of commentators. McDonald, Summary Judgments, 30 Tex.L.Rev. 285, 303 (1952); Clark, The Summary Judgment, 36 Minn.L.Rev. 567, 570-571 (1952); Comment, Summary Judgment, 25 Wash.L.Rev. 71, 76-77 (1950). It codifies a result already achieved by most federal courts. See 6 Moore's Federal Practice Par. 56.12 (2d ed. 1953); 3 Barron & Holtzoff, Fed.Prac. & Proc. § 1235 (1950) [See now, Wright, Federal Practice and Procedure: Civil].
"Subdivision (e). Some recent cases, particularly in the Third Circuit, have held that a mere allegation in the pleading is sufficient to create a genuine issue as to a material fact, and thus prevent summary judgment, even though the pleader has made no attempt to controvert affidavits and other evidentiary matter presented by his opponent; e. g., Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580, 581 (3d Cir. 1948); Reynolds Metals Co. v. Metals Disintegrating Co., 8 F.R.D. 349 (D.N.J.1948), aff'd 176 F.2d 90 (3d Cir. 1949); Chappell v. Goltsman, 186 F.2d 215, 218 (5th Cir. 1950); and cases cited in 6 Moore's Federal Practice Par. 56.11, n. 16 (2d ed. 1953). This line of cases is termed "patently erroneous" in Note, 99 U. of Pa.L.Rev. 212, 214-215 (1950), citing many contrary authorities. The purpose of Rule 56 is to pierce the formal allegations of the pleadings and reach immediately the merits of the controversy. If pleading allegations are sufficient to raise a genuine issue as against uncontradicted evidentiary matter, this remedy then becomes substantially without utility. Engl v. Aetna Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943). The view of most cases and commentators is that, where the motion for summary judgment is supported by depositions or affidavits, the opposing party must make a similar presentation to show the existence of a genuine issue of fact, or suffer judgment to be entered. 3 Barron & Holtzoff, Fed.Prac. & Proc. § 1235 (1950) [See, now, Wright Federal Practice and Procedure: Civil]. 6 Moore's Federal Practice 56.11[??], n. 21 (2d ed. 1953), and cases there cited; id. at 56.15[??]; Asbill & Snell, Summary Judgment Under the Federal Rules--When An Issue of Fact Is Presented, 51 Mich.L.Rev. 1143, 1159-1165 (1953); Shientag, The Summary Judgment 24 (1941); Kennedy, The Federal Summary Judgment Rule, 13 Brooklyn L.Rev. 5 (1947); Comm., "Genuineness" of Issues on Summary Judgment, 4 Fed.Rules Serv. 940.
"The amendment to subdivision (e) states this last principle and thus makes it clear that pleading allegations cannot, in themselves, create a genuine issue of material fact when summary judgment is sought. By emphasizing the function of the motion for summary judgment, the amendment may stimulate more frequent and effective use of this device, as urged by the Judicial Conference of the United States, in its Report of Sept.1948, pp. 36-37, and by commentators. Yankwich, Summary Judgment under Federal Practice, 40 Calif.L.Rev. 204 (1952); Clark, Special Problems in Drafting and Interpreting Procedural Codes and Rules, 3 Vand.L.Rev. 493, 502-505 (1950); Clark, The Summary Judgment, 36 Minn.L.Rev. 567 (1952); Wright, Modern Pleading and the Pennsylvania Rules, 101 U. of Pa.L.Rev. 909, 936-937 (1953); Comment, Summary Judgment, 25 Wash.L.Rev. 71 (1950); Note, The Scope of Summary Judgment Under the Federal Rules, 5 Vand.L.Rev. 607 (1952); Note, Summary Judgments in the Federal Courts, 99 U. of Pa.L.Rev. 212 (1950); see McAllister, Pre-Trial Practice in the Southern District of New York, 12 F.R.D. 373, 378. Compare the holding that summary judgment granting specific performance can never be proper, for a party cannot be entitled to equitable relief as a matter of law, Seaboard Surety Co. v. Racine Screw Co., 203 F.2d 532 (7th Cir. 1953), with the grant of summary judgment of specific performance in Dale v. Preg, 204 F.2d 434 (9th Cir. 1953), and Palmer v. Chamberlin, 191 F.2d 532, 27 A.L.R.2d 416 (5th Cir. 1951), and as expressly authorized in N.Y.C.P. Rule 113. See also the grant of summary judgment of injunction in United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), and Houghton, Mifflin Co. v. Stackpole Sons, 113 F.2d 627 (2d Cir. 1940).
"The amended rule does not, of course, require the grant of summary judgment in a case where such judgment is not proper even though the facts be taken as in the moving party's affidavit.
"The court may deny the motion if for any reason summary judgment would be inappropriate, even though the opposite party has not submitted an affidavit. The court may order a continuance in accordance with the provisions of Rule 56(f) where a party makes a substantial showing by affidavit that he cannot then present the facts essential to justify his opposition to judgment."