In a recent decision in Amos Fin. LLC v. Crapanzano, et al., the New York Supreme Court, Rockland County, addressed one of the new Uniform Rules that went into effect on February 1, 2021—Uniform Rule 202.8-g(a).[1]  Uniform Rule 202.8-g(a) provides that any party moving for summary judgment must “annex[] to the notice of motion 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.”  Although it is derived from Commercial Division Rule 19-a, Uniform Rule 202.8-g differs from the Commercial Division Rule, which provides only that for a motion for summary judgment, “the court may direct”[2] that the moving party annex such a statement to its motion.

In Amos, a foreclosure action that plaintiff let linger for nine years before moving to restore it, plaintiff moved for summary judgment on December 4, 2020—before the new Uniform Rules became effective.[3]  The Court denied the bulk of plaintiff’s motion on April 30, 2021.  Subsequently, on June 11, 2021, plaintiff filed another motion, which was styled as an application for summary judgment and default judgment.  As part of its motion papers, plaintiff included “several hundred pages of advocacy and business records[.]”[4]  Plaintiff, however, did not submit a statement of material facts.

The Court denied plaintiff’s motion as “procedurally defective on its face” because it failed to comply with Uniform Rule 202.8-g(a).[5]  In its decision, the Court noted that “[p]laintiff’s papers [] appear to offer no explanation for why plaintiff did not and could not comply with this Rule, or any recognition that this Rule exists.”  The Court then went on to address Uniform Rule 202.8-g(a) more generally, explaining that it is “not precatory or discretionary in its application: it is a mandate on all summary judgment movants in this State.”[6] The Court furthered that “a summary judgment movant's total failure to submit a Uniform Rule 202.8-g Statement of Material Facts constitutes a violation that is neither merely technical nor without prejudice.” 

Specifically, the Court explained that “[u]nlike minor technical ‘glitches,’ irregularities and harmless pleading errors that courts have substantial discretion to correct nunc pro tunc under CPLR 2101(f) and/or CPLR 2001, the total absence of a Uniform Rule 202.8-g Statement of Material Facts constitutes a substantive defect in a motion for summary judgment.”[7]  And the Court noted that a party’s failure to follow Uniform Rule 202.8-g “can prejudice a respondent by offering motion papers that — as plaintiff's papers do here — functionally bury in a voluminous record the relevant allegations of fact and their evidentiary basis.”[8]  Indeed, the Court recognized that avoiding such an occurrence and thereby promoting judicial economy was “precisely why the Judiciary promulgated Rule 202.8-g in the first place.”[9]

Furthermore, the Court considered another New York Supreme Court decision that addressed the consequences of a failure to follow Uniform Rule 202.8-g, Reus v. ETC Hous. Corp.[10] In Reus, the moving party submitted its statement of material facts, but the opposing party did not submit an opposition to the statement of material facts that complied with Uniform Rule 202.8-g(b)&(d).[11] Accordingly, the court concluded that all of the facts in the moving party’s statement of materials facts were deemed admitted under Uniform Rule 202.8-g(c).[12]  In Amos, the Court noted the distinction between the moving party and the opposing party failing to follow Uniform Rule 202.8-g, stating that while the opposing party is “entitled to the benefit of every possible favorable inference in opposition to the motion, a summary judgment movant enjoys no such presumption but rather must carry affirmatively its burden of proof.”[13]  The Court, however, applied Reus to the circumstances at issue, concluding that “[i]f a respondent failing to oppose a Rule 202.8-g Statement of Material Facts in the manner that Rule prescribes thereby admits those facts, then a fortiori a CPLR 3212 movant whose papers fail to satisfy the condition precedent of a Uniform Rule 202.8-g Material Statement of Facts thereby fails properly to put those facts before the Court in the first instance.”[14]