Summary Judgment Practice — New York State Court

Timing is everything. The plaintiff in Morgan, Lewis & Bockius LLP v. IBuyDigital.com, Inc., 2007 NY Slip Op 50149U; 2007 N.Y. Misc. LEXIS 191 (Sup. Ct. N.Y. Co. Jan. 11, 2007), moved for summary judgment on an account stated claim for unpaid legal bills but its moving papers did not contain detailed enough affidavits as to its regular practice of mailing out bills (or, better, the mailing of the particular bills at issue) to demonstrate that the bills had been received by the defendant — an element of its prima facie case. The defendant pointed out this omission, so the plaintiff rectified the error in its reply papers by filing detailed affidavits as to mailing. All is well, right? Held, reply papers are not timely to prove an element of your prima facie case in New York State court: "[I]t is well-settled that a plaintiff seeking summary judgment may not cure its failure to establish a prima facie case by submitting the missing evidence by way of reply" (citations omitted). Held, reply affidavits ignored; summary judgment denied.

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