The New York Law Blog: Beating Summary Judgment in a New York Court: He Said She Said
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Wednesday, May 18, 2016

Beating Summary Judgment in a New York Court: He Said She Said

"While they are arguing, I'm winning."
Here is a perfect example of how a skilled attorney can use proper strategy that applies to just about any dispute, whether it be a claim for injury or a dispute over money: when you have more than one target, you can pit one against the other to maximize your position. 


My client, a front seat passenger in a motor vehicle, doesn't know what happened to him. All he knows is that he was injured in a car accident - and that was enough to win the day for him.  

My client was sitting in the front seat of a vehicle driven by a young relative of his.  While traveling on Jericho Turnpike on Long Island, this vehicle collided with one driven by a third party.  The impact was so severe that my client was knocked unconscious, remembering nothing until paramedics removed him from the twisted metal that was the vehicle.  

The driver of his vehicle contended that she did nothing wrong and that the fault was with the other driver.  And of course, the driver of the other vehicle had a completely different story, as you'd imagine.  But our driver moved for summary judgment.  

Summary judgment motions are the gateway to moving from discovery to preparing for trial.  The standard for granting a motion for summary judgment is that the case should be similarly decided when there is no issue to be resolved at trial. Andre v. Pomeroy, 35 N.Y.2d 361 (1974). When faced with a motion for summary judgment, the Court must decide whether there is no genuine factual issue. Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110 (1926).  To beat the motion, I would have to show a triable issue of fact that can only be resolved at trial. 

The challenge laid out for me was clear - how to obtain full compensation for my client's injuries.  To do that,  I would need to defeat this summary judgment motion to not only keep his relative in the matter, but more importantly, to keep her insurance company - and its greater coverage -  in it as well. To do so, I pitted driver against driver. 

The driver of the vehicle which my client was in claimed in her sworn testimony that the other vehicle was traveling in the opposite direction and turned as if to pass through the intersection where the accident occurred and struck her while she was traveling with a green light.  

For his part, the other driver testified that he did not turn at all. He claimed to be standing at a red turn signal on Jericho Turnpike when the other vehicle plowed into him head-on, driving his vehicle back several yards.

The divergent stories made my life so easy - and the decision easy for the Judge, who held that "significant issues of fact exist[ed] sufficient to require a plenary trial" based upon "the parties' conflicting testimony concerning how the accident occurred".   

But, this matter would never see trial, as this ruling strengthened our negotiating posture and resulted in a much more favorable outcome than had been envisioned before this decision.

***

I didn't even really have to work to reach my client's goals:  the other side did all the work for me!  It's a handy tactic to employ when you have multiple defendants who are both looking to avoid responsibility, but who ultimately put themselves on the hook.
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*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.

Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.