How to Oppose a Motion for Summary Judgment in NY

To oppose a motion for summary judgment in New York, you have to serve timely papers under CPLR 3212 that put admissible evidence in front of the judge, evidence specific enough to show a real factual dispute that only a trial can resolve. General denials, attorney argument, and “we disagree” won’t do it. What follows is what your opposition needs to contain, when it has to be served, and the mistakes that end cases before a jury ever sees them.

When Your Opposition Is Due

Timing is set by CPLR 2214(b) and depends on the notice the moving party gave. In the default scenario, answering affidavits must be served at least two days before the return date. If the notice of motion was served at least 16 days before the return date and demanded an earlier response, your answering papers are due at least seven days before the return date.¹

Read the notice of motion first. It tells you which of those deadlines applies. Then check how the motion was served. Under CPLR 2103, service by mail adds five days to any prescribed period measured from service, and six days if the mailing came from outside New York but within the United States.² Miscounting by a day can be fatal.

Local rules layer on more. In the Commercial Division of the Supreme Court, dispositive motions like summary judgment can be adjourned only with court consent under 22 NYCRR 202.70, Rule 16.³ In New York County, electronic filing through NYSCEF is mandatory for most civil cases, and papers that aren’t e-filed will not become part of the court record.⁴

Courts can accept late opposition papers for good cause, but this is discretionary. If you need more time, get a stipulation from opposing counsel or file for an extension before your deadline runs. Do not rely on the judge’s mercy after the fact.

One procedural check to run at the same time: the motion itself must be filed no later than 120 days after the note of issue, absent leave for good cause, under CPLR 3212(a). A motion filed later without permission should be denied regardless of its merits.⁵

What Goes in Your Opposition Papers

A complete opposition typically has three pieces: an affidavit from someone with personal knowledge of the facts, a memorandum of law addressing the moving party’s arguments, and supporting exhibits. Under CPLR 3212(b), the motion must be denied if the opposing party shows “facts sufficient to require a trial of any issue of fact.”⁵ The operative word is facts. Conclusions and general denials get nothing.

Every paper must be served on all parties who have appeared, whether by personal delivery, mail, or electronic means where required or agreed to.² The papers also have to be filed with the clerk. A submission that isn’t properly served can be disregarded entirely.

You can also request oral argument. Whether the court grants it is discretionary, and some courts require a formal written request in advance.

Responding to the Statement of Material Facts

This is where opposition papers most often fall apart. Under 22 NYCRR 202.8-g, the court may direct that a summary judgment motion include a separate, numbered statement of the material facts the moving party claims are undisputed. When that statement is filed, you must respond with a correspondingly numbered paragraph addressing each fact. Any fact you fail to specifically controvert may be deemed admitted for purposes of the motion.⁶

Each response has to cite the evidence supporting your position. If you want to introduce additional material facts, add them in supplemental numbered paragraphs, again with citations. The court can order compliance and adjourn the motion if either side fails to file its statement, or it can deem the moving party’s facts admitted after notice and an opportunity to cure.⁶

A narrative rebuttal is not a response. Go line by line. Mark each fact disputed or undisputed. Back up every dispute with a specific evidentiary citation. Treating the statement as boilerplate is one of the fastest ways to lose.

Evidence That Actually Raises a Triable Issue

Your evidence has to be in admissible form. CPLR 3212(b) requires opposition papers supported by affidavits, depositions, written admissions, or other documentary proof.⁵ Affidavits must be sworn by people with firsthand knowledge. An attorney affirmation reciting facts the attorney didn’t personally witness carries almost no weight; the Court of Appeals in Zuckerman v. City of New York held that a party opposing summary judgment must produce “evidentiary proof in admissible form sufficient to require a trial of material questions of fact.”⁷

Courts disregard hearsay affidavits unless a recognized exception applies. The business records exception under CPLR 4518 lets records made in the regular course of business come in as evidence of the events they document, usually through an affidavit from a records custodian establishing routine business practice.⁸

Depositions and Written Admissions

Certified deposition excerpts are often the strongest tool. If the moving party’s own sworn testimony contradicts their motion, cite the pages and lines directly. Don’t dump the whole transcript on the judge and hope the useful passages get found.

Written admissions matter too. Under CPLR 3123, a party who fails to respond to a request for admission within 20 days is deemed to have admitted the matters requested. Those admissions apply only to the pending case, but they can lock the moving party into positions that sink their own motion.⁹

Expert Affidavits

Expert affidavits can create factual disputes on technical issues that lay witnesses can’t address, such as medical causation or engineering standards. Under CPLR 3212(b), a court cannot refuse to consider an expert affidavit merely because the expert exchange required by CPLR 3101(d)(1)(i) wasn’t completed before submission.⁵ The affidavit still needs the expert’s factual basis and reasoning, though. Credentials followed by a bare conclusion won’t raise a triable issue.

Documents

Contracts, medical records, financial statements, emails, and photographs can all support an opposition, but each has to be authenticated. If a document isn’t self-authenticating, attach an affidavit from someone with direct knowledge, such as a records custodian, a signer, or a witness who can identify it. Unauthenticated documents get rejected routinely.

Attack the Moving Party’s Prima Facie Showing First

Before marshaling your own evidence, look hard at whether the motion clears its own bar. The party seeking summary judgment carries the initial burden of proving entitlement to it through admissible evidence, and if that showing falls short, the motion has to be denied regardless of your opposition. In Winegrad v. New York University Medical Center, the Court of Appeals held that a failure to make a prima facie showing “requires denial of the motion, regardless of the sufficiency of the opposing papers.”¹⁰

If the moving papers rest on conclusory statements, skip an element of the claim, or rely on inadmissible evidence, say so at the top of your opposition. You may not need to prove anything on your own to defeat the motion.

Beyond that threshold, three lines of attack tend to work. First, factual disputes: conflicting testimony, contradictory documents, and competing expert opinions. Credibility questions are especially effective because they belong to a jury, not a judge reading paper submissions. Second, legal argument: even undisputed facts don’t help the moving party if the law doesn’t support them. Negligence cases often survive summary judgment because proximate cause and comparative fault are jury questions, and contract cases often survive because ambiguous language has to be interpreted by a factfinder. Third, procedural defects, including any timeliness problem with the motion itself.

When You Need More Discovery Before Responding

If the motion arrived before you had a real chance to develop the record, CPLR 3212(f) is the tool. When your opposition affidavits show that facts essential to justify opposition “may exist but cannot then be stated,” the court can deny the motion outright or grant a continuance for further discovery.⁵

Vague requests fail. Your affidavit needs to identify the facts you believe exist, explain why you can’t present them yet, describe the discovery you’ve already pursued, and show how more time would let you meet the motion’s arguments. The more concrete you are about what you expect to find and where, the better the odds of a continuance.

Filing a Cross-Motion

Opposition doesn’t have to be defensive. CPLR 3212(b) lets the court grant summary judgment to any party the record supports, even without a formal cross-motion.⁵ In practice, filing an actual cross-motion is far more effective than hoping a judge spots the argument on their own.

A cross-motion is served with your opposition papers, and it must be served at least seven days before the return date when the moving party’s notice demands that timeline. Even if the cross-motion is denied, it forces the other side to defend their own case and focuses the court on the weaknesses in the underlying motion.

What Happens If You Don’t Respond

Failing to submit opposition does not automatically hand the moving party a win. Under Winegrad, the moving party still has to make a prima facie showing of entitlement to judgment as a matter of law, and a facially deficient motion should not be granted just because nobody opposed it.¹⁰ In real life, though, judges seeing an unopposed motion that looks competent on its face will usually grant it. Vacating that order later, whether for law office failure or another reason, is uphill. File something.

A Note on Sanctions

Both sides can face sanctions for frivolous conduct under 22 NYCRR 130-1.1. Conduct is frivolous if it is completely without legal merit, undertaken primarily to delay or harass, or contains material factual statements that are false.¹¹ That includes opposition papers. Affidavits with false factual statements or opposition arguments with no legal basis, submitted only to delay the case, can draw reimbursement of the other side’s expenses and attorney’s fees along with additional financial penalties.

1
New York State Senate. New York Civil Practice Law and Rules CPLR R2214 – Motion Papers; Service; Time
2
New York State Senate. New York Civil Practice Law and Rules CPLR R2103 – Service of Papers
3
Legal Information Institute. New York Code 22 NYCRR 202.70 Rule 16 – Motions in General
4
New York State Unified Court System. Supreme Court, Civil Branch, New York County – E-Filing
5
New York State Senate. New York Civil Practice Law and Rules CPLR R3212 – Motion for Summary Judgment
6
Legal Information Institute. New York Code 22 NYCRR 202.8-g – Statements of Material Facts on Motion for Summary Judgment
7
New York State Reporter. Zuckerman v City of New York
8
New York State Senate. New York Civil Practice Law and Rules CPLR R4518 – Business Records
9
New York State Senate. New York Civil Practice Law and Rules CPLR 3123 – Admissions as to Matters of Fact, Papers, Documents and Photographs
10
New York State Law Reporting Bureau. Winegrad v New York University Medical Center
11
Legal Information Institute. New York Code 22 NYCRR 130-1.1 – Costs; Sanctions