In the last few years, I've been asked by several clients why we don't just move for summary judgment almost off the bat of the lawsuit; after all, the reasoning goes, isn't it clear that the other side is lying, and that we should win the case? (Moreover, at least in theory, the earlier you move for summary judgment, the less money has been spent on the case).

The truth, however, is no, if you intend to move for summary judgment, the best time to do so is to wait until fact discovery, which typically includes document exchange and depositions, in the case is complete.

The Reason(s) Why You Shouldn't Make Multiple Motions for Summary Judgment 

First, while there may be some temptation to "bury your adversary in paper," that notion inherently neglects the very real concern that you will annoy your assigned judge by bogging his/her calendar down by making motion after motion.

Second, and perhaps more importantly, New York's courts will usually give you one shot at summary judgment, so you'd better make it count.

New York's courts have summarized this rule as follows:

New York law has a "strong policy against allowing successive motions for summary judgment". Baron v Charles Azzue, Inc., 240 AD2d 447, 449 (2d Dept 1997).

This is particularly true where the motion is based on legal grounds and factual assertions that were or could have been raised in an earlier motion. Levitz v Robbins Music Corp., 17 AD2d 801, 801 (1st Dept 1962) ("Parties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment"); Phoenix Four, Inc. v. Albertini, 245 AD2d 166, 167 (1st Dept 1997) ("The IAS court properly denied the plaintiff's motion for summary judgment since the motion was based on matters that could have been but were not raised in an earlier summary judgment motion by plaintiff's predecessor in interest").

"Indeed, '[s]uccessive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification." Jones v 636 Holding Corp., 73 AD3d 409, (1st Dept 2010)."

The Upshot

In other words, you're vastly better off waiting until fact discovery has been completed before making your summary judgment motion, because it allows you to argue more effectively that all of the competent evidence in the case points in your favor.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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