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  1. #1
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    Default Withdrawal of Summary Judgment Motion

    My question involves court procedures for the state of: New York

    I have a motion for summary judgment asking the court to declare a hefty invoice presented for collection by petitioner as invalid. I presented so far technical evidence. Petitioner presented a photo copy of the invoice certified as having been copied from the original. It shows the original invoice was issued in 2014, and the certification made in 2020. I know that the invoice is a fabrication. But as it is provided by a foreign company located overseas, it would be very difficult and time consuming to have an overseas expert make an affidavit as to its validity. So I relied on presenting evidence that the website (including the domain name) and other markings shown on the original invoice did not exist before 2019. In his response the petitioner says that my evidence is inadmissible and that I must rely on a forensic expert witness to prove same. Before I make a reply and allow the motion to be marked submitted, I am asking as follows:

    1. If I withdraw the motion without prejudice until I can get admissible evidence, how does that hurt me?
    2. If I simply withdraw the motion, what happens next? Will I still have the benefit of having a trial or an evidentiary hearing, or is that forfeited?
    3. What are my options under the circumstances? I know that the invoice is invalid.
    4. Need I explicitly demand a trial on the issue to have a jury make a decision?

    I would really appreciate some helpful insight.

    I forgot to ask one more question: If I withdraw the motion, can the court decide right away to allow the invoice as valid? if so, how can I prevent this from happening?

  2. #2
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    Default Re: Withdrawal of Summary Judgment Motion

    Sorry, your questions are well beyond the scope of these forums.

    You need a lawyer.

    How much money are you being sued for?

  3. #3
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    Default Re: Withdrawal of Summary Judgment Motion

    Quote Quoting adjusterjack
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    Sorry, your questions are well beyond the scope of these forums.
    How much money are you being sued for?
    You mean no one on this forum has any general idea about how this works? As to your question, it is not a direct suit, it is a petition involving an estate where I have interest. I don't know if it is wise to disclose amounts on the forum where no one can help anyway.

    As a general question, what makes a person entitled to try an issue of fact? Assuming, I had never requested a summary judgment, would I have had the right to have the facts tried simply by making an objection and asserting in an affidavit that the facts presented by the other side are false? Thank you.

  4. #4
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    Default Re: Withdrawal of Summary Judgment Motion

    Quote Quoting karl3712
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    You mean no one on this forum has any general idea about how this works?
    Never said that. Many of us do have a general idea about how this works and some, who are attorneys, have more specific knowledge about how it works. But you weren't asking for general information. You were asking about specific legal procedure.

    Quote Quoting karl3712
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    As to your question, it is not a direct suit, it is a petition involving an estate where I have interest.
    Another reason we don't give specific legal advice (besides not allowed to) is that people rarely provide the necessary details for which advice can be garnered. That yours is an estate issue is completely different from a lawsuit issue and should have been revealed at the getgo.

    Worse, you started a new thread when you should have been adding this to your previous threads on the same topic. None of us are expected to, or required to, hunt for your previous information, information that, when known, probably makes any conversation in this thread useless without reading the previous discussions.

    https://www.expertlaw.com/forums/sho...t=#post1135112

    https://www.expertlaw.com/forums/sho...t=#post1149355

    A glance at those two threads reinforces your need for a lawyer.

    Quote Quoting karl3712
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    As a general question, what makes a person entitled to try an issue of fact? Assuming, I had never requested a summary judgment, would I have had the right to have the facts tried simply by making an objection and asserting in an affidavit that the facts presented by the other side are false?
    Assuming that you properly filed your petition with the probate court and properly served it on the involved party, the opposition would have the opportunity to file a response with the court and the court would set a hearing during which both sides present evidence to support their positions.

    Did any of that happen?

    Or is the MSJ the only thing you filed with the court?

  5. #5
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    Default Re: Withdrawal of Summary Judgment Motion

    Quote Quoting karl3712
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    My question involves court procedures for the state of: New York

    I have a motion for summary judgment asking the court to declare a hefty invoice presented for collection by petitioner as invalid. I presented so far technical evidence. Petitioner presented a photo copy of the invoice certified as having been copied from the original. It shows the original invoice was issued in 2014, and the certification made in 2020. I know that the invoice is a fabrication. But as it is provided by a foreign company located overseas, it would be very difficult and time consuming to have an overseas expert make an affidavit as to its validity. So I relied on presenting evidence that the website (including the domain name) and other markings shown on the original invoice did not exist before 2019. In his response the petitioner says that my evidence is inadmissible and that I must rely on a forensic expert witness to prove same. Before I make a reply and allow the motion to be marked submitted, I am asking as follows:

    1. If I withdraw the motion without prejudice until I can get admissible evidence, how does that hurt me?
    2. If I simply withdraw the motion, what happens next? Will I still have the benefit of having a trial or an evidentiary hearing, or is that forfeited?
    3. What are my options under the circumstances? I know that the invoice is invalid.
    4. Need I explicitly demand a trial on the issue to have a jury make a decision?

    I would really appreciate some helpful insight.

    I forgot to ask one more question: If I withdraw the motion, can the court decide right away to allow the invoice as valid? if so, how can I prevent this from happening?

    No need to fuzz over this. An order granting your motion to withdraw the SJ motion will in no way jeopardize your lawsuit. No more than if the court were to rule unfavorable on its merits.

    Moreover it will not per se validate or add any measure of relevancy or enhance the probative value of the proposed evidence.

    The summary judgment process provides a means of resolving disputes without need for lengthy trials. The courts are not going to discourage the use of that process by imposing penalties. Win some, lose some and some are rained out!

  6. #6
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    Default Re: Withdrawal of Summary Judgment Motion

    Summary judgment is simply a fast way to resolve the issue(s) in the motion — a ruling from the judge without the need for a trial. It is appropriate when there are no material facts in dispute and all that remains to be decided are the legal issues. If you withdraw the summary judgment motion then you'll have to resolve the issue of the invoice some other way. If you don't withdraw the the summary judgment motion and lose, same thing. Losing your summary judgment motion does not mean the invoice is automatically considered valid. You just don't get the fast win on the issue. However, whether the smarter tactical move here is to withdraw your summary judgment motion depends on all the details of your case and is something you would need to ask a civil litigation lawyer in your state to look at for a good opinion on that.

  7. #7
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    Default Re: Withdrawal of Summary Judgment Motion

    Quote Quoting latigo
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    The summary judgment process provides a means of resolving disputes without need for lengthy trials. The courts are not going to discourage the use of that process by imposing penalties. Win some, lose some and some are rained out!
    Thanks very much... this is very helpful...

    Quote Quoting Taxing Matters
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    Summary judgment is simply a fast way to resolve the issue(s) in the motion a ruling from the judge without the need for a trial. It is appropriate when there are no material facts in dispute and all that remains to be decided are the legal issues. If you withdraw the summary judgment motion then you'll have to resolve the issue of the invoice some other way. If you don't withdraw the the summary judgment motion and lose, same thing. Losing your summary judgment motion does not mean the invoice is automatically considered valid. You just don't get the fast win on the issue. However, whether the smarter tactical move here is to withdraw your summary judgment motion depends on all the details of your case and is something you would need to ask a civil litigation lawyer in your state to look at for a good opinion on that.
    Thanks very much for this elaborate explanation...

    Quote Quoting adjusterjack
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    Assuming that you properly filed your petition with the probate court and properly served it on the involved party, the opposition would have the opportunity to file a response with the court and the court would set a hearing during which both sides present evidence to support their positions.

    Did any of that happen?

    Or is the MSJ the only thing you filed with the court?
    Thanks... I should say first that the previous threads dealt with different issues which have been resolved... to answer your questions here, the petition was filed by another party and was served on me. I filed an objection as a response stating that the document is invalid as a fabrication. The court did not set any hearing on this issue, it was dealing with different issues for a while. A few months after filing my objection, I filed the MSJ providing the evidence I mentioned in the initial post. I just received the response from the other side stating that the evidence I provided is not admissible, which brought my questions here to understand the process. I appreciate your telling me that I need a lawyer. To answer your question in short, I can probably say that the court never set a hearing. I don't know if I can say the only thing I filed was the MSJ, but I hope I clarified the facts.

  8. #8
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    Default Re: Withdrawal of Summary Judgment Motion

    the court never set a hearing
    You can ask for a hearing on particular issues.

  9. #9
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    Default Re: Withdrawal of Summary Judgment Motion

    Your post is very unclear.


    Quote Quoting karl3712
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    I have a motion for summary judgment asking the court to declare a hefty invoice presented for collection by petitioner as invalid.
    So...the sole purpose of the motion is to obtain a declaration that the invoice is "invalid"? What does "invalid" mean in this context, and of what benefit would this declaration be? A motion for summary judgment does not seek to have a piece of evidence declared "invalid" or inadmissible or anything of that sort. Rather, a motion for summary judgment seeks to have judgment entered without the need for trial. Your original post makes it appear that you are being sued for failing to pay an amount that the plaintiff claims is due and that you're seeking to have judgment entered in your favor, but then you said this is an estate proceeding, so that muddies the water even more. On what ground are you seeking to have this done?


    Quote Quoting karl3712
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    Petitioner presented a photo copy of the invoice certified as having been copied from the original.
    Presented in what context? Certified by whom?


    Quote Quoting karl3712
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    If I withdraw the motion without prejudice until I can get admissible evidence, how does that hurt me?
    There's no way for anyone not familiar with your case to answer this question intelligently.


    Quote Quoting karl3712
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    If I simply withdraw the motion, what happens next? Will I still have the benefit of having a trial or an evidentiary hearing, or is that forfeited?
    There's no way anyone here could know what will happen next, but you certainly will not forfeit your right to trial (although trials are not typically held in estate proceedings, and it may be that you had no right to a trial in the first place).


    Quote Quoting karl3712
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    What are my options under the circumstances? I know that the invoice is invalid.
    4. Need I explicitly demand a trial on the issue to have a jury make a decision?
    The only smart options for you are to retain an attorney or learn the rules of procedure.


    Quote Quoting karl3712
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    If I withdraw the motion, can the court decide right away to allow the invoice as valid? if so, how can I prevent this from happening?
    These questions don't make much sense. A court does not determine the admissibility of a piece of evidence (if, in fact, that's what you're talking about) until that evidence is offered in the context of a motion, hearing or trial.

    Quote Quoting karl3712
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    what makes a person entitled to try an issue of fact?
    Judges and juries are triers of fact.


    Quote Quoting karl3712
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    Assuming, I had never requested a summary judgment, would I have had the right to have the facts tried simply by making an objection and asserting in an affidavit that the facts presented by the other side are false?
    No way to know because you've provided in sufficient information about the case and the nature of the issue.

  10. #10
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    Default Re: Withdrawal of Summary Judgment Motion

    You asked if voluntarily removing your motion for summary judgment would have adverse repercussions and I told you no. Now I'm going to tell you that your preemptive motion was misconceived and inappropriate.

    A motion for summary judgement lies where there are no material disagreements as to the substantive factual issues and based upon those factual issues the moving party is entitled to a judgment as a matter of law.

    Here, in contrast, the very essence of your motion admits of a fundamental disagreement as to a critical issue of fact. That issue being the authenticity and admissibility of the adverse party's proposed documentary evidence; to-wit: the invoice.

    In other words your motion was a misfit. What would be fitting here would be a Motion in Limine. Meaning one seeking a preemptive adjudication by the court as to the admissibility of the invoice. If you'd like some information regarding the mechanics and purpose of such a motion from a seasoned trial lawyer, please ask me.

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