Thursday, July 29, 2010

Useful Practice Nuggets

In Perez v. New York Housing Authority - the plaintiff did not disclose as part of her discovery responses the nonparty witnesses upon whose affidavits she relied in opposition to the defendant's motion for summary judgment. Given that the plaintiff did not explain this failure, the court found as a matter of discretion, that those affidavits should not have been considered.

In McGee v. Dunn - the court reiterated the well-established rule that entry of a default judgment is not a "ministerial" act. Rather, the moving party must demonstrate that a viable cause of action exists. In determining whether such a cause of action exists, the court can consider the complaint, affidavits and affirmations submitted by the plaintiff.

In Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. - the court observed that the motion court did not err in considering defendants' untimely cross motion for summary judgment to the extent that it addressed the Labor Law causes of action that were the subject of plaintiffs' timely motion for summary judgment.

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