Commercial Division Rule 19-a says that, on a summary judgment motion, the Court may direct the filing of “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Lawyers who don’t handle Commercial Division cases can get tripped up by Rule 19-a in several respects:
First, while Rule 19-a says the Court “may” direct the filing of a Rule 19-a Statement, both Westchester Commercial Division Justices require it. Justice Jamieson’s rules state: “Any motion that omits such a statement will be denied, and any opposition that fails to respond to it as set forth in Rule 19-a will be disregarded.” Similarly, Justice Walsh’s rules state: “A motion for summary judgment which lacks such a statement may be rejected. All opposing papers must include a response to the Statement of Undisputed Facts that shall comply with Rule 19-a (b), (d) of the Commercial Division Rules.”
Second, while Justice Jamieson’s rules state that summary judgment motions lacking the Rule 19-a Statement “will be denied” and Justice Walsh’s rules say that motions lacking it “may be rejected,” the danger comes for the opposing party:
Rule 19-a(b) states that, “the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and, if necessary, additional paragraphs containing a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.”
Under Rule 19-a(c), “[e]ach numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” Bd. of Mgrs. of the Marbury Club Condo. V. Marbury Corners, LLC, 2010 NY Slip Op 51650[U], *13 (Sup. Ct. Westchester County 2010) (matter alleged in Rule 19-a statement admitted when not controverted).
And under Rule 19-a(d), “[e]ach statement of material fact by the movant or opponent pursuant to subdivision (a) or (b), including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion.”
Rule 19-a, though, does not require the opposing party to submit its own statement of facts that it alleges are in dispute. That was the holding in Trevcon Construction Co. v. Tappan Zee Constructors, LLC, Index No. 66381/17.
In that case, Defendant moved for summary judgment and submitted a Rule 19-a Statement. Plaintiff controverted some of the claims but did not submit a statement of facts it alleged were in dispute. Defendant argued that the motion should be granted on that basis, but Justice Walsh disagreed. Since Rule 19-a(b) requires such a statement only if the party deems it necessary, the failure to submit one cannot, of itself, be grounds to grant the motion.
Plaintiff nevertheless failed to comply with the requirement that the response must contain citations to evidence submitted in opposition. Justice Walsh, therefore, found Plaintiff’s response “deficient,” but “in the exercise of discretion,” treated Plaintiff’s affidavit in opposition “as the functional equivalent of a counter Rule 19-a statement.”
Nevertheless, hoping to be saved by a judge’s “exercise of discretion” on Rule 19-a statements is dangerous. Recently, on May 23, 2019, Justice Jamieson considered two motions for summary judgement in the same case. The defendant argued that plaintiff’s motion was untimely, but the Court rejected that argument, explaining that, “[r]ather than focus on the procedural, the Court shall focus on the substantive, and decides both motions on their merits.” Justice Jamieson then immediately pivoted to the issue of Rule 19-a statements, finding that plaintiff failed to submit its own Rule 19-a statement, or to refute the defendant’s statement. As a result, the Court found that all of defendant’s factual allegations were “deemed admitted.” HH Marina Dev. LLC v. Tarrytown Boat Club, Inc., Index No. 63135/17. Clearly, Justice Jamieson does not view a Rule 19-a statement as “procedural,” but rather an essential component of considering the case “on the merits.”
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