There has been quite a bit of confusion about Statements of Undisputed Facts in New York lately. Here is where the rule stands (and keep scrolling for my take on why you should always include one regardless of the rule).

At the end of 2020 (yes, that hectic year), the Uniform Civil Rules for the Supreme and County Courts in New York (citation format, NYCRR) were amended to add several new rules applicable to motions filed in these courts (one of which imposed a word limit on motions filed in all cases, not just those in the commercial division).

One of the most significant changes was this one:

“Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, there shall be annexed 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.”

— NYCRR Section 202.8-g(a) (Statements of Material Facts)

I am a big fan of Statements of Undisputed Material Facts (keep scrolling to read why). So I was delighted to see this new Section 202.8-g(a). The rule went into effect in February 2021, and I happily helped my lawyer-clients create the statements required to bring or oppose a motion for summary judgment.

In oppositions to summary judgment motions, I also eagerly drafted arguments seeking denial of the motion based on the movant’s failure to include the Section 202.8-g(a) statement. The argument looked something like this:

“The Uniform Rules governing summary judgment motions require every movant to attach 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.” 22 NYCRR (Uniform Rules of the Supreme and County Courts) §202.8-g(a). The material facts in the statement must also cite to the evidence submitted in support of the motion. §202.8-g(d).

Rule 202.8-g went into effect on February 1, 2021. Yet the motion, which was filed on January 25, 2022, does not contain the required Rule 202.8-g statement or any explanation as to why it was not included.

In the year since Rule 202.8-g was enacted, trial courts across New York have held that compliance with the rule is mandatory, not discretionary, and a failure to include the statement requires denial of the motion. See, e.g., Wahrsager v. Frankel, 2022 N.Y. Misc. LEXIS 2046, *3 (N.Y. Sup. Ct. Nassau Cty. March 2, 2022) (“Uniform Rule 202.8-g is mandatory and failure to comply with same renders a motion for summary judgment facially defective”); Mealing v. Clark, 2021 NY Slip Op 33091(U), *3-5 (N.Y. Sup. Ct. Queens Cty. 2021) (“Procedurally, plaintiff’s failure to annex a statement of material facts to his motion papers pursuant to 22 NYCRR 202.8-g(a) warrants denial of the motion”); Amos Fin. LLC v. Crapanzano, 73 Misc. 3d 448, 453 (N.Y. Sup. Ct. Rockland Cty. 2021) (denying motion because “the total absence of a Uniform Rule 202.8-g Statement of Material Facts constitutes a substantive defect in a motion for summary judgment”).

As this Court explained in Mealing, “a summary judgment movant who fails to set forth a material statement of facts as required by the rule has failed to properly put those facts before the court in the first instance.” Mealing, supra, 2021 NY Slip Op 33091(U), *4. Here, movant failed to submit the required statement and therefore failed to properly put forth the facts entitling her to partial summary judgment. Her motion should be denied on this preliminary procedural ground, without regard to the merits of her claims.”

— Section of Memo of Law opposing summary judgment

The argument was pretty successful. Maybe too successful. Because the rule was changed again. As of July 1, 2022, the rule now reads:

“Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, the court may direct that there shall be annexed 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.”

— NYCRR Section 202.8-g(a) (Statements of Material Facts)

The difference? The words “the court may direct that…” The rule is now left to the discretion of the judge, who may require it and deny the motion (among other things) if the required statement does not appear as part of the motion.

How do you know if your judge requires a Statement of Undisputed Material Facts with a motion for summary judgment? Check your judge’s part rules to find out.

Interestingly, the version of Section 202.8-g(a) as of July 1, 2022 is now aligned with Rule 19-a of the Uniform Rules of the Commercial Division of the Supreme Court. Rule 19-a has always left it to the judge’s discretion to require a Statement of Undisputed Facts for a summary judgment motion. Most judges do, by the way.

Why?

For the same reason that I love Statements of Undisputed Material Facts: it focuses a lawyer’s mind to really think about the facts and evidence to determine whether a material fact is disputed or not. It makes for a clearer brief with a sharper analysis.

I see over and over again sloppy analysis on summary judgment motions where the lawyer did not grasp that a certain fact is material and disputed. Summary judgment is only granted on undisputed facts—because it is the equivalent to a trial, and the judge is not permitted to make findings of fact on a motion, as opposed to at a hearing.

I write motions and appeals for solo lawyers and small law firms all across the country. Most courts require a Statement of Undisputed Facts for summary judgment motions. New York is an outlier on this point. And it shows in the often messy summary judgment procedure, with many lawyers filing motions for their clients when there is a whole basket of disputed facts.

By creating a Statement of Undisputed Material Facts, you advance your analysis ten-fold. You make it more likely that your motion will be successful, or, if you see you cannot win summary judgment because you cannot show a material fact is disputed, then you are less likely to waste your clients’ money.

In my opinion, you should always include a Statement of Undisputed Facts, whether it is required or not.

If you need help with a summary judgment motion you want to bring or need to oppose, get in touch.

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