The People of the State of New York by Andrew M. Cuomo,, Respondent,v.Maurice R. Greenberg, et al., Appellants.BriefN.Y.May 28, 2013New York County Clerk’s Index No. 401720/05 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK by ANDREW M. CUOMO, Attorney General of the State of New York, Plaintiff-Respondent, - against - MAURICE R. GREENBERG and HOWARD I. SMITH, Defendants-Appellants. BRIEF OF AMICUS CURIAE KATE STITH IN SUPPORT OF APPELLANTS KATE STITH Lafayette S. Foster Professor of Law YALE LAW SCHOOL Attorney for Amicus Curiae P.O. Box 208215 New Haven, Connecticut 06520 Tel.: (203) 432-4835 Fax: (203) 432-1957 Date Completed: January 30, 2013 TABLE OF CONTENTS TABLE 0 F A UTH 0 RITIES ................................................................. iii STATEMENT OF INTEREST ............................................................... 1 ARGUMENT ............................................................................................ 2 I. THIS COURT'S DECISIONS ALLOW THE USE OF INADMISSIBLE EVIDENCE TO OPPOSE SUMMARY JUDGMENT ONLY WHEN THE PARTY HAS "DEMONSTRAT[ED AN] ACCEPTABLE EXCUSE" ............... 4 II. THE RULE FOLLOWED BY THE COURT BELOW CONFLICTS WITH THIS COURT'S DECISIONS AND THE DECISIONS OF EVERY OTHER JURISDICTION IN THE COUNTRY ........................................................................ 7 A. The Rule Conflicts With This Court's Decisions Because It Allows The Use Of Inadmissible Evidence To Oppose Summary Judgment Without Requiring Any Excuse ........................................ 7 B. The Rule Conflicts With The Decisions Of Every Jurisdiction In The Country And With The Purpose Of Summary Judgment ...................................... 9 III. OTHER LOWER COURT DECISIONS REPEATING THE RULE APPLIED BY THE COURT BELOW RESULT FROM A MISUNDERSTANDING OF THIS COURT'S HOLDINGS ................................................................. II A. The Rule Originated In Two Dissenting Opinions Misinterpreting Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972) ................................................................ 11 1 B. The Rule Eventually Appeared In A Majority Opinion And Was Subsequently Relied Upon By Other Courts ....................................................................... 15 CONCLUSION ....................................................................................... 18 APPENDIX. ............................................................................................. la 11 TABLE OF AUTHORITIES CASES Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) ........................................................................ 4 Arnold v. N.Y. City Hous. Auth., 296 A.D .2d 355 (1st Dep't 2002) .................................................... 17 Biggs v. Hess, 85 A.D.3d 1675 (4th Dep't 2011) .................................................... 17 Bond v. Giebel, 14 A.D .3d 849 (3d Dep't 2005) ....................................................... 17 Briggs v. 2244 Morris L.P., 30 A.D.3d 216 (1st Dep't 2006) ...................................................... 17 Brill v. City of N.Y., 2 N. Y.3d 648 (2004) .................................................................... 5, 10 Callari v. Pellitieri, 130 A.D.2d 935 (4th Dep't 1987) .............................................. 16, 17 Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023 (1983) ...................................................................... 5 Cohen v. Herbal Concepts, Inc., 100 A.D.2d 175 (1st Dep't 1984) .................................................. 16 DiVeronica Bros. v. Basset, 213 A.D.2d 936 (3d Dep't 1995) ............................................... 16, 17 Egleston v. Kalamarides, 58 N.Y. 2d 682 (1982) .................................................................... 6, 7 111 Freedman v. Chemical Constr. Corp., 43 N. Y.2d 260 (1977) ...................................................................... 12 Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065 (1979) .......................................................... 5, 12, 15 Gier v. CGF Health Sys., 307 A.D.2d 729 (4th Dep't 2003) .................................................... 17 Guztnan v. Strab Constr. Corp., 228 A.D.2d 645 (2d Dep't 1996) ............................................... 16, 17 Horowitz v. Kevah Konner, Inc., 67 A.D.2d 38 (1st Dep't 1979) .................................................. 11, 12 Hyman v. Queens Cnty. Bancorp, Inc., 3 N.Y.3d 7 43 (2004) .......................................................................... 4 IDX Capital, LLC v. Phoenix Partners Grp. LLC, 19 N.Y.3d 850 (2012) ........................................................................ 4 In re N. Y.C Asbestos Litig., 7 A.D.3d 285 (1st Dep't 2004) ...................................................... 2, 7 lndig v. Finkelstein, 23 N.Y.2d 728 (1968) ........................................................................ 6 Koren v. Weihs, 201 A.D.2d 268 (1st Dep't 1994) .............................................. 16, 17 Kwong On Bank, Ltd. v. Monrose Knitwear Corp., 7 4 A.D.2d 768 (1st Dep't 1980) ...................................................... 12 Murray v. N. County Ins. Co., 277 A.D.2d 84 7 (3d Dep't 2000) ..................................................... 17 Narvaez v. NYRAC, 290 A.D.2d 400 (1st Dep't 2002) .................................................... 17 lV O'Halloran v. City of N.Y., 78 A.D.3d 536 (1st Dep't 2010) ...................................................... 17 Peope v. Greenberg, 95 A.D.3d 474 (1st Dep't 2012) .......................................... 2, 7, 8, 11 Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972) ................................................................ 13, 14 Raux v. City of Utica, 59 A.D.3d 984 (4th Dep't 2009) ...................................................... 17 Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525 (1st Dep't 2010) ...................................................... 17 Rodriguez v. Sixth President, Inc., 4 A.D.3d 406 (2d Dep't 2004) ......................................................... 17 Sunfirst Fed. Credit Union v. Empire Ins. Co. I All City Ins. Co., 239 A.D.2d 894 (4th Dep't 1997) .............................................. 16, 17 Sutton v. E. River Sav. Bank, 55 N.Y.2d 550 (1982) ........................................................................ 7 Thomas v. Our Lady of Mercy Med. Ctr., 289 A.D.2d 37 (1st Dep't 2001) ...................................................... 17 W. W. W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157 (1990) ........................................................................ 5 Wertheimer v. N.Y. Property Insurance Underwriting Ass'n, 85 A.D.2d 540 (1st Dep't 1981) .......................................... 15, 16, 17 X-Med, Inc. v. W. N.Y. Spine, Inc., 74 A.D.3d 1708 (4th Dep't 2010) .................................................... 17 v Zuckerrnan v. City of N.Y., 49 N.Y.2d 557 (1980) ................................................................ 2, 5, 9 Zuilkowski v. Sentry Ins., 114 A.D.2d 453 (2d Dep't 1985) ..................................................... 16 STATUTES N.Y. C.P.L.R. 3212 .................................................................................... 6 N.Y. C.P.L.R. 4519 .................................................................................. 13 TREATISES David D. Siegel, New York Practice (5th ed. 2011) ................................... 8 Weinstein-Korn-Miller, N.Y. Civ. Prac ................................................... 14 OTHER AUTHORITIES Fed. R. Civ. P. 56 advisory committee's note ............................................ 5 VI STATEMENT OF INTEREST I am the Lafayette S. Foster Professor of Law at Yale Law SchooL In that capacity, I regularly teach courses on Criminal Procedure: Charging and Adjudication, in which I devote considerable attention to the differences between civil procedure and criminal procedure. I have become well versed in the standards and evidentiary rules governing summary judgment in federal and state courts. This brief is submitted to aid this Court in determining whether the Appellate Division applied the correct standards and evidentiary rules in affirming the denial of the summary judgment motions of Defendants-Appellants Maurice R. Greenberg and Howard I. Smith. The Appellate Division applied a rule that allows denial of summary judgment on the basis of inadmissible hearsay evidence. Amicus is filing this brief to provide the Court with a more thorough analysis than the parties provided of three issues: (1) the conflict between the Appellate Division's rule and this Court's precedents; (2) the conflict between the Appellate Division's rule and the summary judgment rules of every other jurisdiction in the country, and (3) the history of the Appellate Division's rule's initial erroneous appearance in New York courts and its subsequent spread. 1 ARGUMENT In rejecting Petitioner's motion for summary judgment, the court below explicitly relied on hearsay and multiple-hearsay testimony submitted by the State. People v. Greenberg, 95 A.D.3d 474, 484 (1st Dep't 2012). According to that court, inadmissible evidence ''may be considered in opposition to a motion for summary judgment as long as it does not become the sole basis for the court's determination." ld. (quoting In re N. Y.C Asbestos Litig., 7 A.D.3d 285, 285 (1st Dep't 2004)). This rule is both clearly wrong as a matter of law and deeply flawed as a matter of policy. The rule has no support in this Court's precedents, and in fact contradicts numerous decisions restricting the use of inadmissible evidence in summary judgment proceedings. As this Court said in Zuckerman v. City of N.Y., "We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form .... " 49 N.Y.2d 557, 562 (1980). The rule enunciated by the court below does not require any excuse at all. 2 Moreover, allowing inadmissible evidence in summary judgment proceedings undermines the purpose of summary judgment. Summary judgment exists to prevent wasteful trials where one party-as a matter of law-lacks sufficient evidence to prevail. But allowing a party to defeat summary judgment with evidence that would not be admissible at trial leads, by definition, to such wasteful trials. Indeed, for that reason, no other jurisdiction in the country allows a party to rely on inadmissible evidence to defeat summary judgment. Although a similar rule has been repeated by several Appellate Division decisions, all of those rulings can be traced back to a single misunderstanding of this Court's cases occurring in a pair of thirty- year-old First Department dissents. Those opinions were incorrect from the beginning, and no number of subsequent cases relying on them should transform their error into law. The rule that hearsay testimony may be considered in opposition to summary judgment as long as it is not the sole evidence is not the law in New York State. It never was the law, and it never should be allowed to become the law. This Court should clarify the proper evidentiary standard for summary judgment proceedings, reverse the 3 decision of the court below, and remand the case for consideration under the correct standard. I. THIS COURT'S DECISIONS ALLOW THE USE OF INADMISSIBLE EVIDENCE TO OPPOSE SUMMARY JUDGMENT ONLY WHEN THE PARTY HAS "DEMONSTRAT[ED AN] ACCEPTABLE EXCUSE" Under this Court's decisions, New York's evidentiary standard for motions to oppose summary judgment is well-settled. Generally, "[a] party opposing a motion for summary judgment must produce admissible evidence sufficient to require a trial on material questions of fact upon which the claim rests.'' Hyman v. Queens Cnty. Bancorp, Inc., 3 N.Y.3d 743, 744 (2004); see also IDX Capital, LLC v. Phoenix Partners Grp. LLC, 19 N.Y.3d 850, 851 (2012) (affirming a grant of summary judgment because the opponent had "failed 'to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact''' (quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986))). Requiring parties to meet their burden with admissible evidence flows naturally from the purpose of summary judgment-"avoiding needless litigation cost and delay" by determining before trial if there is, in reality, a ''material issue of fact to be tried." Brill v. City of N.Y., 2 4 N.Y.3d 648, 651 (2004); cf. Fed. R. Civ. P. 56 advisory committee's note ("The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."). Inadmissible evidence, by definition, cannot be considered at trial. Thus, no matter how persuasive or powerful inadmissible evidence may be, it cannot create an issue of fact to be tried. If a party cannot make a case with admissible evidence only, then it cannot make a case at trial, and summary judgment is appropriate. Summary judgment can be defeated with evidence that is not presently in admissible form only if the party can "demonstrate acceptable excuse for [its] failure to meet the strict requirement of tender in admissible form." Zuckerman v. City of N.Y., 49 N.Y.2d 557, 562 (1980) (quoting Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068 (1979)); accord W. W. W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 164 (1990). But this exception as to form is narrow. An "acceptable excuse" must include (1) a valid reason why the evidence is not in admissible form at the summary judgment stage, see Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023, 1026 (1983), and (2) a persuasive explanation of how the evidence can be presented in 5 admissible form at trial, see lndig v. Finkelstein, 23 N.Y.2d 728, 730 (1968). See N.Y. C.P.L.R. 3212(£) ("Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion .... " (emphasis added)). This lin1ited exception as to form reflects a compromise between the statutory requirement that a party opposing summary judgment "show facts sufficient to require a trial," C.P.L.R. 3212(b), and the reality that sometimes known evidence may not be obtainable in admissible form before trial. Such a situation existed, for instance. in Egleston v. Kalamarides, 58 N.Y.2d 682 (1982), an action for slander. There, the plaintiff subn1itted in opposition to summary judgn1ent a hearsay affidavit stating what Mr. Ricketson, an alleged witness to the slander, had told the affiant. The Court allowed the affidavit to be considered because the plaintiff had "suppl[ied an] acceptable excuse''- specifically, "the affidavit ... indicated Ricketson's name, the occasion for the interview with Ricketson, the substance of the slander Ricketson told [the affiant] he had heard the defendant utter and, most important, ... explained, on [the affiant's] direct knowledge, that Ricketson now 6 refused to give an affidavit as to these facts." !d. at 684. In other words, the affidavit showed that although Mr. Ricketson refused to provide an affidavit, he could be subpoenaed to give admissible testimony sufficient to create a n1aterial issue at trial. Absent such a showing, however, this Court has consistently refused to allow parties to evade the ''strict requirement" of tender in admissible form. Sutton v. E. River Sav. Bank, 55 N.Y.2d 550, 553-54 (1982) (rejecting as ''not competent" to defeat summary judgment an affidavit that "laid no claim to any firsthand knowledge of the facts" and another affidavit with "speculative assertions"). II. THE RULE FOLLOWED BY THE COURT BELOW CONFLICTS WITH THIS COURT'S DECISIONS AND THE DECISIONS OF EVERY OTHER JURISDICTION IN THE COUNTRY A. The Rule Conflicts With This Court's Decisions Because It Allows The Use Of Inadmissible Evidence To Oppose Summary Judgment Without Requiring Any Excuse The court below held that inadmissible evidence Hmay be considered in opposition to a motion for summary judgment as long as it does not become the sole basis for the court's determination." People v. Greenberg, 95 A.D.3d 474, 484 (1st Dep't 2012) (quoting In re N. Y.C. Asbestos Litig., 7 A.D.3d 285, 285 (1st Dep't 2004)). On its face, this rule 7 1s directly at odds with this Court's precedents. 1 Under this rule, a party could rely on inadmissible evidence without demonstrating any excuse for its failure to provide sufficient evidence in admissible form. Further, the rule does not require the party to show that the evidence will be provided in admissible form by trial. See Greenberg, 95 A.D.3d at 494 (Catterson, J., dissenting) (noting that the hearsay evidence offered by the State could not "ultimately be converted to admissible evidence at trial"). The State has argued that such a result is permissible because an excuse is required only when a party relies solely on inadmissible evidence. According to the State, "[Once] consideration of inadmissible evidence is already authorized by the tender of some admissible 1 In theory, the rule applied by the appellate division could fit within precedent if it means merely a court can consider inadmissible evidence as long as there is sufficient admissible evidence that the court could deny summary judgment based on the admissible evidence alone. Professor Siegel, for example, favored this reading. David D. Siegel, New York Practice § 281 (5th ed. 2011) C'The court did seem to be at some pains, however, to point out that P[laintiff] might have some other [admissible] to out a prima facie case, thus to the door open to a different result, and to the exclusion of the incompetent evidence, in a case in which such an alternative clearly does not exist." (footnote omitted)). The problem with this interpretation, however, is that it leaves the rule entirely empty. lf a court can consider inadmissible evidence only after determining that the motion should be denied based on admissible evidence, then the inadmissible evidence can never affect the outcome. The court's consideration of the inadmissible evidence- and the rule itself-would be meaningless. Therefore, such an interpretation is unlikely. 8 evidence, there is simply no need to make a showing of excuse as well." NYAG Mem. of Law in Opp. to Defs.' Mot. For Leave to Appeal, or, In the Alternative, for Reargument 30-31. Yet the State offers no Court of Appeals decisions to support this argument, see Resp't Br. 123-24, and indeed, it could not. No support exists. The Court in Zuckerman was clear: "one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse." Zuckerman, 49 N.Y.2d at 562 (emphasis added). Some admissible evidence ts not enough. A party must either meet its burden entirely with admissible evidence or demonstrate acceptable excuse. Here, the State has done neither. B. The Rule Conflicts With The Decisions Of Every Jurisdiction In The Country And With The Purpose Of Summary Judgment The rule applied by the court below does not conflict merely with the holdings of this Court. It also conflicts with every state and federal court to have considered the matter. Reliance on inadmissible evidence to oppose summary judgment without acceptable excuse or a showing that the evidence would be admissible at trial is forbidden by every 9 other jurisdiction in the country. See Appendix. If this Court were to accept the State's arguments, New York would become a minority of one. A rule allowing courts to consider inadmissible evidence to deny summary judgment has been so thoroughly rejected because its only effect would be an increase in needless litigation. The only additional cases that would go to trial under the rule applied below are cases where the admissible evidence presented by the party opposing summary judgment is legally insufficient. Mter all, if the admissible evidence were sufficient, there would be no need to consider inadmissible evidence. But because only the admissible evidence can be considered at trial, the party opposing summary judgment in these additional cases-where, by assumption, the admissible evidence 1s legally insufficient-is inevitably doomed to lose at the trial stage. Holding trials where no material issue of fact exists benefits no one. Such trials waste the resources of "both ... the parties and ... the overburdened New York State trial courts." Brill v. City of N.Y., 2 N.Y.3d 648, 651 (2004). Worse, even if there are no factual issues as a matter of law, a party might accept a meritless settlement to avoid the 10 costs and risks of enduring a trial. This danger is particularly acute in cases involving the State, which can use its superior resources to wear down its opponent. A rule leading to such undesirable outcomes cannot be correct. III. OTHER LOWER COURT DECISIONS REPEATING THE RULE APPLIED BY THE COURT BELOW RESULT FROM A MISUNDERSTANDING OF THIS COURT'S HOLDINGS The rule applied by the court below is supported by several other Appellate Division cases. See Greenberg, 95 A.D.3d at 484 (citing cases); Resp't Br. 123-24 & n.61 (same). But these lower court cases should not be allowed to override this Court's decisions. Moreover, the history of the rule in the lower courts reveals that all of these cases can be traced back to a single misunderstanding of this Court's holdings. Though often repeated, the rule allowing inadmissible evidence in opposition to a motion for summary judgment remains a misunderstanding today. A. The Rule Originated In Two Dissenting Opinions Misinterpreting Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972) The original version of the rule applied by the court below appeared in a pair of First Department dissenting opinions. In Horowitz u. Kevah Kanner, Inc., 67 A.D.2d 38 (1st Dep't 1979), the court held that summary judgment should be granted where the moving party has 11 established a prima facie case and the opponent has not "present[ed] evidentiary facts sufficient to raise a triable issue of fact." !d. at 40 (citing Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 264 (1977)). Justice Vincent Lupiano, joined by Justice Harold Birns, dissented, asserting that "excludable evidence may be considered for the purpose of denying a summary judgment motion provided such evidence is not demonstrated beyond peradventure to be the sole evidence on which defendant might rely at trial." ld. at 45 (Lupiano, J., dissenting). The next year, in Kwong On Bank, Ltd. v. Monrose Knitwear Corp., 74 A.D.2d 768 (1st Dep't 1980), the First Department, relying on this Court's decision in Friends of Animals v. Associated Fur Mfrs., held that absent "acceptable excuse for [the] failure to meet the strict requirement of tender in admissible form," hearsay could not be considered in opposition to summary judgment. !d. at 768 (quoting Friends of Animals, 46 N.Y.2d 1065, 1068 (1979)). Justice Lupiano again dissented. The dissent rejected the Friends of Animals rule requiring admissible evidence or acceptable excuse as "dictum" and once more argued that hearsay evidence should be considered to deny summary judgment. Id. at 769-70 (Lupiano, J., dissenting). 12 To justify his position in each of these opinions, Justice Lupiano relied on a single Court of Appeals decision: Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972). Phillips, however, does not offer any support for a rule allowing inadmissible evidence to defeat a motion for summary judgment. Phillips addressed whether evidence excludable at trial under the Dead Man's Statute2 could be considered in summary judgment proceedings. Phillips, 31 N.Y.2d at 309-10. The Court held that because "New York's Dead Man's Statute by its terms makes testimony ... excludable only '[u]pon the trial of an action or the hearing upon the merits of a special proceeding,"' the testimony could be used by a party opposing summary judgment before trial. /d. at 313- 14 (quoting C.P.L.R. 4519). The Court further reasoned that granting summary judgment would be inappropriate because a party could waive the Dead Man's Statute at trial-according to the Court (citing Wigmore), responsible parties would often do so-or inadvertently trigger one of its exceptions. /d. at 314. 2 The Dead Man's Statute forbids an interested from testifying "against the executor, administrator or survivor of a deceased person or the committee of a mentally ill person ... concerning a personal transaction or communication between the witness and the deceased person or mentally ill person." C.P.L.R. 4519. 13 That reasoning does not apply to inadmissible evidence generally. No statute limits the ban on hearsay to trial only and there is no likelihood that a party would allow the other side to build its case on hearsay. See id. at 314 ("Admittedly, a trial would seem unnecessary if it were certain, in an absolute rather than a pragmatic sense of the term, that there would be no waiver of the [Dead Man's] statute and that all the proof would be excludable."). Additionally, Phillips does not limit its rule to situations where the party opposing summary judgment also presents some admissible evidence. Although the Court in Phillips noted that other, admissible evidence existed in that case, its holding did not rest on that fact. Under Phillips, summary judgment '4should be denied even [if] all of [the opposing party]'s evidence'' is excludable under the Dead Man's Statute. 9-4519 Weinstein-Korn-Miller, N.Y. Civ. Prac. C.P.L.R. ~ 4519.06. Extending Phillips would mean that a party could oppose summary judgment without any admissible evidence at all-a rule that no one has endorsed. Phillips thus does not extend beyond the Dead Man's Statute. See Phillips, 31 N.Y.2d at 315 ("Upon a trial, the full policy of the Dead Man's Statute will be given unstinting application. Before that time, 14 under the letter of the statute evidence not otherwise infirm suffices to determine whether an issue of fact exists .... " (emphasis added)). Instead, Phillips is best read as a specific example of an "acceptable excuse" for the use of one limited type of inadmissible evidence to oppose summary judgment. In fact, that is precisely how this Court has viewed it. See Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068 (1979) (citing Phillips as an "acceptable excuse for [the] failure to meet the strict requirement of tender in admissible form"). Justice Lupiano's reliance on Phillips was simply a misreading of the case. B. The Rule Eventually Appeared In A Majority Opinion And Was Subsequently Relied Upon By Other Courts Eventually, however, Justice Lupiano succeeded in stating his view in a majority opinion. In Wertheimer v. N.Y. Property Insurance Underwriting Ass'n, 85 A.D.2d 540 (1st Dep't 1981), an unsigned opinion issued by a panel including both Justice Lupiano and Justice Birns, id. at 541, the First Department held "that evidence, otherwise excludable at trial, may be considered to deny a motion for summary judgment provided that this evidence does not form the sole basis for 15 the Court's determination." ld. The only support offered was a bare citation to Phillips. Once this rule had been stated in a majority opinion, it began to spread. But perhaps because the rule was so difficult to square with this Court's decisions, it spread slowly. It appeared in the Second Department in 1985, see Zuilkowski v. Sentry Ins., 114 A.D.2d 453, 454 (2d Dep't 1985), but then not again for eleven years, see Guzman v. Strab Constr. Corp., 228 A.D.2d 645, 646 (2d Dep't 1996). It was recognized in the Fourth Department once in 1987, see Callari v. Pellitieri, 130 A.D.2d 935, 936 (4th Dep't 1987), but then not again for ten more years, Sunfirst Fed. Credit Union v. Empire Ins. Co. I All City Ins. Co., 239 A.D.2d 894, 894 (4th Dep't 1997). Indeed, the rule did not reappear in a First Department majority opinion for more than a decade, 3 see Koren v. Weihs, 201 A.D.2d 268, 269 (1st Dep't 1994), and was not recognized in the Third Department until 1995, see DiVeronica Bros. v. Basset, 213 A.D.2d 936, 938-39 (3d Dep't 1995). LTnarguably, however, it did spread. Respondents can marshal numerous cases from the Appellate Division supporting their argument. 3 The rule had previously been cited in a First Department concurrence. Cohen v. Herbal Concepts, Inc., 100 A.D.2d 175, 182 (1st Dep't 1984) (Kassal, J., concurring). 16 But all of those cases can be traced back to Wertheimer and its original error. 4 Ultimately, the rule applied by the court below is just as wrong now as it was when first advanced in 1979. * * * The rule under which the courts below denied the defendants' motions for summary judgment contradicts this Court's holdings, 4 In its brief, the State cites four cases endorsing the rule: O'Halloran u. City of N.Y., 78 A.D.3d 536, 537 (1st Dep't 2010); Rodriguez u. Sixth President, Inc., 4 A.D.3d 406, 407 (2d Dep't 2004); Bond v. Giebel, 14 A.D.3d 849, 850 (3d Dep't 2005); Biggs v. Hess, 85 A.D.3d 1675, 1676 (4th Dep't 2011). Resp't Br. 124 n.61. Wertheimer is the direct progenitor of each of these cases. O'Halloran relies on Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525 (1st Dep't 2010). Rivera relies on Briggs v. 2244 Morris L.P., 30 A.D.3d 216 (1st Dep't 2006). Briggs relies on Narvaez v. NYRAC, 290 A.D.2d 400 (1st Dep't 2002). Narvaez relies on Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99 (1st Dep't 1999), and on Koren v. Weihs, 201 A.D.2d 268 (1st Dep't 1994). Guzman relies on Koren, and Koren relies on Wertheimer. Rodriguez relies on Arnold v. N.Y. City Hous. Auth., 296 A.D.2d 355 (1st Dep't 2002). Arnold relies on Narvaez, on Guzman, and on Thomas v. Our Lady of Mercy Med. Ctr., 289 A.D.2d 37 (1st Dep't 2001). Narvaez relies on Guzman and on Koren and Thomas relies on Guzman. Guzman relies on Koren, and Koren relies on Wertheimer. Bond relies on Murray v. N. County Ins. Co., 277 A.D.2d 847 (3d Dep't 2000). Murray relies on Guzman and on DiVeronica Bros. v. Bassett, 213 A.D.2d 936 (3d Dep't 1995). DiVeronica relies directly on Wertheimer; Guzman relies on Koren, and Koren relies on Wertheimher. Biggs relies on X-Med, Inc. v. W. N.Y. Spine, Inc., 74 A.D.3d 1708 (4th Dep't 2010). X-Med relies on Raux v. City of Utica, 59 A.D.3d 984 (4th Dep't 2009). Raux relies on Arnold, and on Gier v. CGF Health Sys., 307 A.D.2d 729 (4th Dep't 2003). Gier relies on Arnold, and on Sunfirst Fed. Credit Union v. Empire Ins. Co. I All City Ins. Co., 239 A.D.2d 894 (4th Dep't 1997). Arnold relies on Narvaez, on Guzman, and on Thomas. Narvaez relies on Guzman and on Koren. and Thomas relies on Guzman. Guzman relies on Koren, and Koren relies on Wertheimer. Sunfirst relies on Callari u. Pellitieri, 130 A.D.2d 935 (4th Dep't 1987). And Callari relies on Wertheimer. 17 undermines the purpose of summary judgment, has been rejected by all other jurisdictions, and is supported only by other lower court decisions that merely repeat the same error. This Court should reject that rule and reaffirm that parties opposing a motion for summary judgment must produce evidentiary proof in admissible form or demonstrate an acceptable excuse for the failure to do so. CONCLUSION For these reasons, amicus submits that the decision below should be reversed. Dated: New Haven, CT January 29, 2013 Respectfully Submitted, Kate Stith 127 Wall Street P.O. Box 208215 New Haven, CT 06520 (203) 432-4835 Admitted pro hac vice 18 APPENDIX Law Governing Opposition to Summary Judgment In All States Other Than New York, the District of Columbia, and the Federal Government Alabama: Ex Parte Quinlan, 922 So. 2d 914, 916 (Ala. 2005) (stating that an affidavit of a party opposing summary judgment must "setO forth admissible facts"). Alaska: French v. Jadon, Inc., 911 P.2d 20,24 (Alaska 1996) ("lfthe parties choose to submit affidavits, they must ... set forth facts that would be admissible evidence at trial .... ''). Arizona: Florez v. Sargeant, 917 P.2d 250, 256 (Ariz. 1996) ("Affidavits that contain inadmissible evidence [are] ... insufficient to withstand a motion for summary judgment."). Arkansas: Ark. R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... "); see Mercy Health Sys. of Nw. Ark., Inc. v. Bicak, 2011 Ark. App. 341, at *7 ("A statement that is not based on personal knowledge, but on inadmissible hearsay, will not be accepted ... to deny entry of summary judgment."). California: Reid v. Google, Inc., 235 P.3d 988, 995 (Cal. 2010) ("Supporting and opposing affidavits or declarations ... shall set forth admissible evidence .... "). Colorado: Colo. R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... "); see Hauser v. Rose Health Care Sys., 857 P.2d 524, 527 (Colo. App. 1993) ("[O]nce the movant has made a convincing showing that genuine issues of fact are lacking, the non-moving party must demonstrate by admissible facts that a real controversy exists."). la Connecticut: Home Ins. Co. v. Aetna Life & Cas. Co., 663 A.2d 1001, 1009 (Conn. 1995) ("Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment."). Delaware: Kennedy v. Giannone, 527 A.2d 732 (Del. 1987) ("A party opposing a motion for summary judgment must come forward with admissible evidence showing the existence of a genuine issue of fact."). District of Columbia: Jane W. v. President & Dirs. of Georgetown Coil., 863 A.2d 821, 826 (D.C. 2004) ("[A] party opposing a motion for summary judgment must produce at least enough adn1issible evidence to make out a prima facie case in support of his claim."). Florida: Fla. R. Civ. P. 1.510(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence ... . ");see Arce v. Wackenhut Corp., 40 So. 3d 813, 815 (Fla. Dist. Ct. App. 2010) ("Once con1petent evidence to support the motion has been tendered, the opposing party must come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact."). Georgia: Wilson v. Nichols, 316 S.E.2d 752, 754 (Ga. 1984) ("[A] party resisting summary judgment, in addition to coming forward with evidence which is sufficient to create a genuine issue of n1aterial fact, must present some credible warrant for its admissibility."). Hawaii: Haw. Cmty. Fed. Credit Union v. Keka, 11 P.3d 1, 9 (Haw. 2000) ("[T]he rule in Hawai'i is that '[a]n affidavit consisting of inadmissible hearsay cannot serve as a basis for awarding or denying summary judgment."') (quoting GE Capital Haw., Inc. v. Miguel, 990 P.2d 134, 140 (Haw. Ct. App. 1999)). Idaho: Gem State Ins. Co. v. Hutchison, 175 P.3d 172, 175 (Idaho 2007) ("Affidavits supporting or opposing the motion for summary judgment shall set forth such facts as would be admissible in evidence .... "). Illinois: Ill. Sup. Ct. R. 191 (a) ("Affidavits in support of and in opposition to a motion for summary judgment ... shall not consist of conclusions but of facts admissible in evidence ... . ");see Prodromos v. 2a Everen Sec., Inc., 793 N.E.2d 151, 159 (Ill. App. Ct. 2003) ("Evidence, such as hearsay, which is inadmissible at trial is not admissible in support of or in opposition to a motion for summary judgment."). Indiana: Ind. R. Trial P. 56(E) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence ... . ");see City of Gary v. McCrady, 851 N.E.2d 359, 363 (Ind. Ct. App. 2006) ("[A] court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits."). Iowa: Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 96 (Iowa 2012) ("We also note that the court should only consider 'such facts as would be admissible in evidence' when considering the affidavits supporting and opposing summary judgment.") (quoting Iowa R. Civ. P. 1.981(5)). Kansas: Kan. Stat. Ann. § 60-256(e)(1) (West) ("A supporting or opposing affidavit or declaration must ... set out facts that would be admissible in evidence .... "); see Estate of Belden v. Brown Cnty., 261 P.3d 943, 969 (Kan. App. 2011) ("Mfidavits must set forth evidence in a form that would be admissible at trial. ... It would be both contrary to K.S.A. 60-256(e) and nonsensical to suggest an affidavit could be used to defeat summary judgment by presenting opinion evidence that would be inadmissible in the trial of the case."). Kentucky: Ky. R. Civ. P. 56.05 ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence ... . ");see Estate of Turner ex rel. Turner v. Globe Indem. Co., 223 S.W.3d 840, 843 (Ky. Ct. App. 2007) (holding that affidavits were insufficient to defeat summary judgment because they contained information outside the affiant's ''personal knowledge [and] [a]t trial, that information would constitute inadmissible hearsay"). Louisiana: Willis v. Medders, 775 So. 2d 1049, 1051 (La. 2000) (summary judgment should be denied where opposing party submits "evidence that would be admissible and that is sufficient to allow" opposing party to prevail); see La. Code Civ. Proc. Ann. art. 967(a) 3a ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... "). Maine: HSBC Mortg. Servs., Inc. v. Murphy, 19 A.3d 815, 819 (Me. 2011) ("We have ... repeatedly emphasized that a party's assertion of material facts must be supported by record references to evidence that is of a quality that would be admissible at trial."); see Me. R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... ). Maryland: Beatty v. Trailmaster Prods., Inc., 625 A.2d 1005, 1011 (Md. 1993) (''Our cases recognize that in order to defeat a motion for summary judgment, the opposing party must show that there is a genuine dispute as to a material fact by proffering facts which would be admissible in evidence."). Massachusetts: Madsen v. Erwin, 481 N.E.2d 1160, 1164 (Mass. 1985) ("'Hearsay in an affidavit is unacceptable to defeat summary judgment. The rationale for requiring admissible evidence in affidavits is to ensure that 'trial would not be futile on account of lack of competent evidence."' (citations omitted)). Michigan: Maiden v. Rozwood, 597 N.W.2d 817, 824 (Mich. 1999) ("The reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered in opposition to the motion."); see Mich. Ct. R. 2.116(G)(6) (''Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion [for summary judgment] shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion."). Minnesota: Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012) ("[I]n order to establish that there is a disputed material fact, the party against whom summary judgment was granted must 'present specific admissible facts showing a material fact issue.'") (quoting O'Neil v. Kelly, 239 N.W.2d 231, 232 (Minn. 1976)). 4a Mississippi: Walker ex rel Walker v. Skiwski, 529 So. 2d 184, 187 (Miss. 1988) ("[H]earsay ... [is] incompetent in support of-or in opposition to-summary judgment."). Missouri: Mo. Sup. Ct. R. 74.04(e) ("Supporting and opposing affidavits . . . shall set forth such facts as would be adn1issible in evidence .... "); see Lindsay v. Mazzio's Corp., 136 S.W.3d 915, 920 (Mo. Ct. App. 2004) ("[O]nly evidentiary materials that are admissible or usable at trial can sustain or avoid a summary judgment."). Montana: Smith v. Burlington N. & Santa Fe Ry. Co., 187 P.3d 639, 649 (Mont. 2008) ("[I]t is well-settled that during summary judgment proceedings, the parties must limit affidavits to evidence that would be otherwise admissible pursuant to the rules of evidence."). Nebraska: Boyle v. Welsh, 589 N.W.2d 118, 126 (Neb. 1999) (''[T]he key inquiry under [Nebraska's summary judgment statute] ... is whether such evidence 'would be admissible' at trial."); see Neb. Rev. Stat. § 25- 1334 ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... "). Nevada: Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 87 (Nev. 2002) ("The non-moving party's documentation must be admissible evidence, as he or she is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.") (internal quotation marks omitted). New Hampshire: Omiya v. Castor, 536 A.2d 194, 196 (N.H. 1987) (''[T]he opposing party ... [must show] reasonable and specific grounds for believing that evidence disputing the moving party's affidavits can be produced at trial."); see N.H. Rev. Stat. Ann. § 491:8-a (''Any party seeking summary judgment shall accompany his motion with an affidavit based upon personal knowledge of admissible facts .... The facts ... shall be taken to be admitted ... unless ... contradictory affidavits based on personal knowledge are filed or the opposing party files an affidavit showing specifically and clearly reasonable grounds for believing that contradictory evidence can be presented at trial but cannot be furnished by affidavits."). 5a New Jersey: N.J. Ct. R. 1:6-6 (''If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence .... "); N.J. Ct. R. 4:46-5 ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party ... must respond by affidavits meeting the requirements of R. 1:6-6 ... . ");see El-Sioufi v. St. Peter's Univ. Hosp., 887 A.2d 1170, 1181 (N.J. Super. Ct. App. Div. 2005) ("We have commented on numerous occasions that summary judgment motions must be supported by relevant and admissible evidence."). New Mexico: Seal v. Carlsbad Indep. Sch. Dist., 860 P.2d 743, 747 (N.M. 1993) ("The form of summary judgment evidence itself does not have to meet the requirements of admissibility for trial evidence, but the substance of the evidence must be of a type that can be admitted at trial. ... For example, hearsay is not generally admissible at trial, so affidavits or depositions containing hearsay are not sufficient evidence of a fact."). North Carolina: N.C. R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence ... . ");see Strickland v. Doe, 577 S.E.2d 124, 128 (N.C. Ct. App. 2003) (''[A]ffidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment.''). North Dakota: Klimple v. Bahl, 727 N.W.2d 256, 258 (N.D. 2007) ("The party resisting a motion for summary judgment must present competent admissible evidence which raises an issue of material fact."). Ohio: Tokles & Son, Inc. v. Midwestern lndemn. Co., 605 N.E.2d 936, 944 (Ohio 1992) ("Only facts which would be admissible in evidence can be stated in affidavits and relied upon by the trial court when ruling upon a motion for summary judgment."). Oklahoma: Davis v. Leitner, 782 P.2d 924, 927 (Okla. 1989) ("Supporting materials are sufficient if they show the reasonable 6a probability, something beyond a mere contention, that the opposing party will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact in his favor on the issue in dispute."); see Okla. Dist. Ct. R. 13(c) ("The affidavits that are filed by either party ... shall set forth matters that would be admissible in evidence at trial."). Oregon: Or. R. Civ. P. 4 7(D) ("[S]upporting and opposing affidavits and declarations ... shall set forth such facts as would be admissible in evidence ... . ");see West v. Allied Signal, Inc., 113 P.3d 983, 986 (Or. Ct. App. 2005) ("[T]he [Oklahoma summary judgment] rule's requirements are satisfied if, from the content of the affidavit read as a whole, an objectively reasonable person would understand that statements in the affidavit are made from the affiant's personal knowledge .... "). Pennsylvania: Penn Ctr. House, Inc. v. Hoffman, 553 A.2d 900, 905 (Pa. 1989) ("[To defeat summary judgment, an] opposing party [must] offerO competent evidence admissible at trial showing that there is a genuine issue of material fact."). Rhode Island: Trust of McManus v. McManus, 18 A.3d 550, 552 (R.I. 2011) ("The party opposing summary judgment bears the burden of providing, by competent evidence, the existence of facts in dispute."); see R.I. Super. Ct. R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... "). South Carolina: S.C. R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... "); see Hansen v. DHL Labs., Inc., 450 S.E.2d 624, 627 (S.C. Ct. App. 1994) ("A genuine issue of fact . : . can be created only by evidence which would be admissible at trial."), aff'd, 459 S.E.2d 850 (S.C. 1995). South Dakota: Stern Oil Co., Inc. v. Brown, 817 N.W.2d 395, 401 (S.D. 2012) (''The focus in summary judgment hearings centers on the existence of admissible and probative evidence to support the challenged claim or defense."); see S.D. Codified Laws § 15-6-56(e) 7a ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence .... "). Tennessee: Shipley v. Williams, 350 S.W.3d 527, 564 (Tenn. 2011) ("[T]he evidence used to support or to oppose a motion for summary judgment must be admissible."). Texas: United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) ("[N]o difference obtains between the standards for evidence that would be admissible in a summary judgment proceeding and those applicable at a regular triaL"). Utah: Gary Porter Constr. v. Fox Constr., Inc., 101 P.3d 371, 377 (Utah 2004) ("[I]nadmissible hearsay ... cannot create a disputed issue of material fact."); see Utah R. Civ. P. 56(e) ("Supporting and opposing affidavits ... shall set forth such facts as would be admissible in e vide nee . . . . "). Vermont: Vt. R. Civ. P. 56(c)(4) ("An affidavit used to support or oppose a motion must ... set out facts that would be admissible in evidence ... . ");see Campbell v. Pallito, 2010 WL 6634379 (Vt. Super. 2010) ("Without any admissible evidence ... there is no factual dispute precluding summary judgment.") Virginia: Va. Sup. Ct. R. 4:7(a) ("At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof .... "); Va. Sup. Ct. R. 4:8(e) ("[Interrogatory] answers may be used to the extent permitted by the rules of evidence ... . ");see Bhalala & Shah, Inc. v. Quick Out Mkt., Inc., 1994 WL 1031171, at *2 (Va. Cir. Ct. May 2, 1994) (' 4 [A]n ex parte affidavit is not evidence for purposes of summary judgment proceedings where facts remain in dispute."). 8a Washington: Dunlap v. Wayne, 716 P.2d 842, 846 (Wash. 1986) (''A court cannot consider inadmissible evidence when ruling on a motion for summary judgment."). West Virgina: Aluise v. Nationwide Mut. Fire Ins. Co., 625 S.E.2d 260, 266 (W.Va. 2005) (''[I]n deciding a motion for summary judgment. a court may rely only on material that would be admissible at trial."). Wisconsin: Wis. Stat. Ann. § 802.08(3) (West) ("Supporting and opposing affidavits ... shall set forth such evidentiary facts as would be admissible in evidence."); see David J. French Revocable Trust of 1991 v. Jacob, 794 N.W.2d 926, at *2 (Wis. Ct. App. 2010) ("The party that opposes a summary judgn1ent motion n1ust set forth specific facts, evidentiary in nature and admissible in form, demonstrating that a genuine issue exists for trial."). Wyoming: Formisano v. Gaston, 246 P.3d 286, 288-89 (Wyo. 2011) (''The evidence opposing a prima facie case on a motion for summary judgment 'must be competent and admissible .... "'). Federal Courts: Fed. R. Civ. P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) ("Hearsay testimony ... that would not be admissible if testified to at the trial may not properly be set forth in [a summary judgment] affidavit." (alteration in original)); Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994) ("The evidence [used to oppose summary judgment] need not be in admissible form; affidavits are ordinarily not admissible evidence at a trial. But it must be admissible in content, in the sense that a change in form but not in content, for example a substitution of oral testimony for a summary of that testimony in an affidavit, would make the evidence admissible at trial."). 9a