NY Trial Courts Strictly Apply New Uniform Rule Requiring Statement of Material Fact

As discussed in detail in our March 2021 article regarding the changes made to the Uniform Rules of the New York Supreme and County Courts earlier this year, new Rule 202.8-g requires that a Statement of Material Facts be submitted with most motions for summary judgment. Of all the new provisions we discussed, Section 202.8-g has, so far, generated the most important caselaw for attorneys practicing in Supreme Court.

Like its counterpart in the Commercial Division, Rule 19-a, (from which 202.8-g is based), the new Supreme Court rule requiring a Statement of Material Facts appears, on its face, mandatory for moving parties. Further, for respondents, both the Commercial Division rule and the Supreme Court rule provide that a material fact will be deemed admitted unless specifically controverted by the respondent in a correspondingly numbered opposition paragraph.

However, unlike in the Commercial Division where hyper-technical application of Rule 19-a has been discouraged,[1] multiple New York trial courts in different regions of the state, including in the First, Second, and Third Judicial Departments, have been rigidly applying Section 202.8-g, leading to disastrous consequences for both movants[2] and respondents.[3] Despite the incongruency between how courts have applied Rule 19-a in the Commercial Division, for now, and unless the Appellate Division or a majority of trial courts hold otherwise,[4] submitting a Statement of Material Facts in Supreme Court is crucial when moving for or opposing motions for summary judgement.

UPDATE: Following the publication of this article, the Chief Administrative Judge issued AO-141-22, which modified Rule 202.8-g to allow court discretion on the consequences of failing to file a Statement of Material Fact.

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[1] Matter of Crouse Health Sys., Inc. v City of Syracuse, 126 AD3d 1336, 1338 (4th Dep’t 2015) (“under the circumstances the court abused its discretion in deeming the entire statement admitted.”); Abreu v Barkin & Assoc. Realty, Inc., 69 AD3d 420, 421 (1st Dep’t 2010) (“while the rule gives a motion court the discretion to deem facts admitted, the court is not required to do so.”).

[2] Cent. Mgt. Corp. v Petco Animal Supplies Stores, Inc., 2021 NY Slip Op 32125[U], *2-3 (New York County Supreme Court, Nov. 3, 2021) (Denying movant’s motion and noting “[w]hile the Court recognizes that these are newly promulgated rules, a statement of material facts is necessary here because plaintiff’s requested relief does not offer enough specifics as to its prima facie case.”); Amos Fin. LLC v Crapanzano, 73 Misc 3d 448, 2021 NY Slip Op 21209, *2 (Rockland County Supreme Court, July 30, 2021) (“the total absence of a Uniform Rule 202.8-g Statement of Material Facts constitutes a substantive defect in a motion for summary judgment” and noting that such a defect cannot be waived by the court under CPLR 2101(f)).

[3] Valentino v Fuertes, 2021 NY Slip Op 51103[U], *1 (Columbia County Supreme Court, Nov. 22, 2021) (“the plain language of the Rule is incapable of any other construction to avoid the Court from deeming the defendants’ statement of material facts admitted and thereby granting them summary judgment.”); Reus v Etc Hous. Corp., 72 Misc 3d 479, 483-484 (Clinton County Supreme Court, May 6, 2021) (“pursuant to the mandate of 22 NYCRR 202.8-g(c), the Court finds that each and every statement in Defendant’s Statement of Material Facts is deemed admitted.”).

[4] At least one New York trial court has taken the approach of the Commercial Division with respect to Uniform Rule 202.8-g. See Mackins v City of NY, 2021 NY Slip Op 32440[U], *7 (New York County Supreme Court, Nov. 24, 2021) (“Here, in the exercise of discretion, this court has considered the City’s papers and does not deem plaintiff’s statement of facts as admitted.”).