Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013):

2. The Rule 56.1 Statement Footnote

A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the moving party contends there is no genuine issue to be tried." Local R. Civ. P. 56.1(a). In Defendants' Rule 56.1 statement, Defendants included the following footnote: "Defendants note that the facts contained herein are undisputed solely for purposes of [D]efendants' motion for summary judgment, and reserve the right to dispute any such fact were this case to proceed to trial." (Def. 56.1 at 2 n.1.) Judge Fox found that this statement meant that the facts in the Rule 56.1 statement were not, in reality, undisputed and that summary judgment was therefore inappropriate. (Report at 4-5.)

The Court respectfully disagrees. Summary judgment is appropriate only when there are no genuinely disputed facts. Fed. R. Civ. P. 56(a). Any dispute about the facts, however, must be established by record evidence. See Matsushita, 475 U.S. at 586-87. A party's personal belief that the true facts are different from the facts established by the record cannot create a genuine dispute. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996). Here, Defendants' footnote implies that Defendants might not truly believe the facts in the record. But that belief is irrelevant for summary judgment. Accordingly, the Court does not adopt the Report's finding that Defendants' footnote makes summary judgment unwarranted.

The Court, however, adds a word of warning for Defendants. A reservation of the right to dispute facts at trial does not immunize a party from the risks of not disputing facts at summary judgment. On cross-motion by an opposing party — or by the court's own initiative — a court can grant summary judgment against the originally moving party. See Fed. R. Civ. P. 56(a), (f).   Moreover, even with such a reservation, a court can determine that certain facts are established and forbid parties from contesting those facts at trial. Fed. R. Civ. P. 56(g). A court is not bound by a party's hedging.