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Not "Just the Facts, Ma'am": Appellate Division Highlights Importance of Statement of Material Facts

The Appellate Division, First Department, in Seo v City of New York, 2024 NY Slip Op 01785, recently issued a decision highlighting the tactical importance of a relatively recent feature of motion practice in New York state courts. In short, the practitioner must appropriately address the facts in a statement or counterstatement of material facts, as the case may be. Failure to do so can be fatal to the case. 

Some Background: 

On July 1, 2022, the NYS Courts issued a new rule requiring all motions for summary judgment to include a statement of material facts where the particular court in question required one. Uniform Civil Rules For The Supreme Court & The County Court, Section 202.8-g. 

That is, the rule gave each court in New York the ability to require a statement of material facts on any motion for summary judgment. The statement would include separately numbered paragraphs asserting each fact the movant asserted was undisputed and required no trier of fact to resolve. Moreover, each asserted fact required a citation to the specific section of the record supporting such factual assertion. 

Any party opposing such a motion must submit a counterstatement of material facts. The counterstatement would contain correspondingly numbered paragraphs disputing those facts asserted by the movant and requiring a trier of fact to resolve. It, too, would cite relevant sections of the record for support. 

Crucially, under this new rubric, any fact asserted by the movant not disputed explicitly by the opponent on the motion would be deemed admitted and resolved without needing a trial. 

The Decision:

Under this context, the defendant moved for summary judgment in a personal injury action and asserted that the defendant police officer was responding to an emergency situation and thus was required to cross a double yellow line on the road and enter the intersection against a red light, and was not operating his vehicle in violation of the Vehicle and Traffic Law. 

The plaintiff initially opposed, conceding that the defendant was indeed responding to an emergency. Subsequently, after the defendant submitted a reply affirmation, the plaintiff interposed an amended opposition and, for the first time, disputed that the defendant was responding to an emergency. Notably, the plaintiff did not submit an amended counterstatement of facts on the amended opposition, disputing the assertion that the defendant officer was responding to an emergency. The lower court accepted and considered the amended opposition and denied the defendant's motion for summary judgment. The defendant appealed to the Appellate Division. 

The Appellate Division reversed and granted the defendant's motion for summary judgment, holding that the lower court incorrectly considered the plaintiff's amended opposition. Moreover, they noted that the plaintiff's amended opposition did not contain an amended counterstatement of material facts disputing the defendant's assertion that the officer was responding to an emergency, even if the amended affirmation disputed that. 

The Takeaway:

The decision highlights the tactical importance of what might seem an otherwise innocuous new rule. A statement of material facts should not ostensibly make or break a case. But the decision shows that "in fact," the statement is crucial. 

For the practitioner, harnessing the correct relevant law is essential. However, the importance of drawing out from the record and highlighting the facts necessary to resolve the case successfully must be recognized and is, perhaps, paramount. 

Put another way, case law may be open to interpretation, and its applicability is questioned. Facts, once admitted, are rarely so. 


In its decision, the motion court explicitly considered the statements in plaintiff's amended affirmation. This was erroneous. On appeal, plaintiff offers no reasonable explanation for his change in position. Moreover, the amended affirmation did not include a request to withdraw or modify plaintiff's Counter Statement of Facts pursuant to Rule 202.8-g (22 NYCRR 202.8-g[c]), in which plaintiff had also conceded that the police were responding to an emergency.


litigation, cplr, personal injury, facts, summary judgment, motion practice, law