Practice point: While the ultimate burden of proof at trial is on the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form. The ultimate burden of proof after trial plays no part in the assessment of whether there are relevant factual issues presented on a motion for summary judgment. A moving defendant does not meet its burden of affirmatively establishing its entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff's case. Instead, it must affirmatively demonstrate the merit of its claim or defense.
Student note A motion for summary judgment will not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.
Case: Collado v. Jiacono, NY Slip Op 02443 (2d Dept. 2015)
Here is the decision.
Monday's issue: Summary judgment in a slip and fall action.
