Research Work- New York

February 4, 2023

The facts of the case are that an employer filed an arbitration claim against the employee, which arbitration claim lasted for more than two years. In the prosecution of the claim, the Plaintiff (employer) had filed a Motion for Summary Judgment with false and unsubstantiated evidence, against the employee (Defendant). Consequently, the Defendant filed a Cross-Motion for Summary Judgment against Plaintiff, which duly satisfied all requirements in law. However, Plaintiff failed to respond to Defendant’s Cross-Motion. 

About 300 days later, Plaintiff, in complete ignorance, and with no response to the Defendant’s Cross-Motion, filed an application to the arbitrator seeking a decision on a Temporary Restraining Order, which he had already been denied n the past.  

Research Topic One

The first Research Topic raises two pertinent issues:

  1. Whether the Plaintiff is in default for failing to respond to a Cross-Motion for Summary Judgment.
  2. Whether the arbitrator should grant Defendant’s prayers in the Cross-Motion for Summary Judgment.
  3. Whether there is a specific amount of time required for a Plaintiff to respond to a Cross-Motion for Summary Judgment in New York. 

  • Whether the Plaintiff is in default for failing to respond to a Cross-Motion for Summary Judgment.

A cross motion is “merely a motion by any party against the party who made the original  motion, made returnable at the same time as the original motion” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C2215:1; see CPLR 2215) (Emphasis added). Accordingly, the return date for the Cross-Motion is the same in the original Motion. 

CPLR 2214[b] provides guidelines on the answering and/or responding papers. The said provision states in pertinent part that:

Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time. (Emphasis added).

 

It is worth noting that “motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b)” See Henry v. Peguero, 72 A.D.3d 600, 602, 900 N.Y.S.2d 49 [2010], appeal dismissed 15 N.Y.3d 820, 908 N.Y.S.2d 152, 934 N.E.2d 886 [2010]. However, when a party fails to respond to a motion as required, the hearing should proceed. 

Regardless of Plaintiff’s failure to respond, the Defendant is entitled to summary judgment against Plaintiff only if the factual allegations demonstrate its entitlement to a judgment as a matter of law. See Liberty Taxi Management, Inc. v. Gincherman, 32 A.D.3d 276, 277 n. 1, 820 N.Y.S.2d 49 (1st Dep’t 2006); Cugini v. Sys. Lbr. Co., 111 A.D.2d 114, 115, 489 N.Y.S.2d 492 (1st Dep’t), app. Dismissed, 65 N.Y.2d 1053, 494 N.Y.S.2d 1061, 484 N.E.2d 1059 (1985) (“A movant’s failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers.”). 

Based on the foregoing jurisprudence from New York’s civil practice, the Plaintiff’s failure to respond to your Cross-Motion waives his right to demonstrate his right to Summary Judgment, which he filed initially. The arbitrator will therefore proceed with the case based on your application. 

  • Whether the arbitrator should grant Defendant’s prayers in the Cross-Motion for Summary Judgment.

The issue that remains is whether the arbitrator should grant Defendant’s prayers in the Cross-Motion. I shall make reference to the jurisprudence from the Court, which I used above. Notably, the Defendant is entitled to summary judgment against Plaintiff only if the factual allegations demonstrate its entitlement to a judgment as a matter of law. See Liberty Taxi Management, Inc. v. Gincherman, 32 A.D.3d 276, 277 n. 1, 820 N.Y.S.2d 49 (1st Dep’t 2006); Cugini v. Sys. Lbr. Co., 111 A.D.2d 114, 115, 489 N.Y.S.2d 492 (1st Dep’t), app. Dismissed, 65 N.Y.2d 1053, 494 N.Y.S.2d 1061, 484 N.E.2d 1059 (1985) (“A movant’s failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers.”). 

In that regard, the arbitrator will only grant your prayers if your arguments in the Cross-Motion are supported by evidence and there exists no issue of material fact. 

  • Whether there is a specific amount of time required for a Plaintiff to respond to a Cross-Motion for Summary Judgment in New York.

This issue has already been dealt with. Specifically, the rule for the response of Cross-Motion applies in the same manner as in other Motions. Please refer to CPLR 2214[b]. 

Research Topic Two

The second research topic raises one issue to wit, whether the Plaintiff is prevented from making any new application(s) before responding to the instant Cross-Motion from Defendant. 

First, it is clear that the Plaintiff’s failure to respond to the Cross-Motion does not stagnate the case. See Liberty Taxi Management, Inc, 32 A.D.3d 276, 277 n. 1, 820 N.Y.S.2d 49 (1st Dep’t 2006). In fact, the arbitrator should have proceeded with the hearing of the case on the date set for the hearing. 

There is no statutory authority to be found either in the CPLR or in any other law that precludes a party to an action from filing any additional applications before the Court. However, the applications shall only be made subject to the relevant provisions in law regarding the specific type of applications. See 9 U.S. Code § 6. For instance, any further application made by the Plaintiff must adhere to the time limit requirements regarding the specific application. 

In the instructions, you state that the Plaintiff makes an application requesting the Arbitrator to make a decision on a TRO, which was denied previously. In such a situation, the application is barred by the doctrine of res judicata. “under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof.” Shelley v. Silvestre, 66 AD3d 992, 993, 887 N.Y.S.2d 662.

Conclusion

In conclusion, the Plaintiff’s failure to respond to Defendant’s Cross-Motion for Summary Judgment does not stagnate the case. The arbitrator should proceed with the hearing based on the allegations in your Cross-Motion. Also, the Defendant is not barred from filing any additional application. However, such application must adhere to the legal requirements and shall be accepted at the discretion of the arbitrator. 

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