Burden of Proof: Liberation Day
7.11.2025
Most of you recall that President Trump declared April 2 “Liberation Day.” Tremendous amounts of ink have been spilled predicting the impact changes to tariff rules will have on our day-to-day lives. With the 4th of July just passed, it is unclear to us what the impact will be, though David just ordered 30 toys for each child on his Christmas list in case prices go up.
For New York State court litigators such as ourselves, we will celebrate a different Liberation Day: July 7, 2025. On that date, Uniform Rule 202.8-g will be repealed, greatly enhancing our lives as litigators. Why and how? Read on.
Oh, and also noteworthy – Uniform Rule 202.8-b is amended effective that same date to make clear that the word count limits in moving, opposing, and reply papers “shall not apply to evidentiary materials such as affidavits, affirmations or reports from lay or expert witnesses.”
Uniform Rule 202.8-g
Enacted on Dec. 29, 2020, effective Feb. 1, 2021 and amended on Aug. 31, 2022,[1] Uniform Rule 202.8-g currently provides:
(a) Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, the court may direct that there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.
(b) In such a case, the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and, if necessary, additional paragraphs containing a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(c) Each numbered paragraph in the statement of material facts required to be served by the moving party may be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. The court may allow any such admission to be amended or withdrawn on such terms as may be just.
(d) Each statement of material fact by the movant or opponent pursuant to subdivision (a) or (b), including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion.
(e) In the event that the proponent of a motion for summary judgment fails to provide a statement of undisputed facts though required to do so, the court may order compliance and adjourn the motion, may deny the motion without prejudice to renewal upon compliance, or may take such other action as may be just and appropriate. In the event that the opponent of a motion for summary judgment fails to provide any counter statement of undisputed facts though required to do so, the court may order compliance and adjourn the motion, may, after notice to the opponent and opportunity to cure, deem the assertions contained in the proponent’s statement to be admitted for purposes of the motion, or may take such other action as may be just and appropriate.
Rule 19-a. Motions for Summary Judgment; Statements of Material Facts
A statewide rule regarding statements of material fact originated in the Commercial Division in 2006 and was subsequently adopted in all Supreme Court parts in 2020.[2] The current iteration of the rule in the Commercial Division, amended April 27, 2022 (effective May 2, 2022)[3] and which is not repealed, provides:
(a) Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, the court may direct that there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.
(b) In such a case, the papers opposing a motion for summary judgment shall include a correspondingly numbered statement responding to each numbered paragraph in the statement of the moving party. In the response to the material statement of facts, the respondent shall recite the movant’s paragraphs and then provide a response to that paragraph, so the court has all the materials in one document. The movant shall, upon request, promptly provide the respondent with a copy of the material statement of facts in the same word processing software application in which the statement was prepared. The respondent may also include additional paragraphs containing a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(c) Each numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.
(d) Each statement of material fact by the movant or opponent pursuant to subdivision (a) or (b), including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion.
While the goal behind statements of material facts, to narrow the issues before the court on summary judgment, was salutary, the impact on our practice was to add yet another time-consuming component to moving for and opposing summary judgment motions. Since summary judgment motions are a significant aspect of our practice, the marginal benefit from clarifying and narrowing issues, both for court and counsel, was not worth the effort. At least in our experience.
This is particularly so when, in practice, statements of material facts devolved into yet another tool for argument, misstatement of facts, and long-winded statements that were anything but “short” and “concise,” and often contain statements as to which there was a genuine question as to a material fact.
Creating confusion was the fact that judges could opt out of the requirement, as in Paley v. Curious Holdings LLC, and courts could ignore non-compliance, as in Argueta v. Hall and Wright, LLC,.[4] Interestingly enough, the underlying motions in Paley and Argueta were both filed in September 2021,[5] prior to the amendment that permitted the court discretion to require a statement of material facts, and subparagraph (e) which explicitly permitted the court to overlook the failure to provide a statement and to direct compliance with the rule.
With the repeal of 202.8-g, everything old is new again.
Uniform Rule 202.8-b
By now the rules on word counts in summary judgment motions, which also took effect Feb. 1, 2021, are familiar to practitioners. While our anecdotal survey finds the bench almost universally supportive of the limitations, the bar is divided, and likely more opposed than in favor. Some of this no doubt arises from lawyers’ reflexive “don’t tell us what to do” response when instructed on how to litigate our cases, while much more likely stems from the realization that writing that is short, concise, and therefore more effective, is far more time-intensive than writing that is verbose, meandering, and vapid.
In the four-plus years the rule has been in effect court-wide, we have, begrudgingly, come to appreciate the rule and we acknowledge that our writing is better for it. And, in moving or answering papers, 7,000 words each for the attorney’s affirmation and the memorandum of law is not stingy (and remember replies are limited to 4,200 words).
However, we have spent countless hours and burned the midnight oil trying to limit an expert affirmation in a complex, multi-party case to those same limits, occasionally sacrificing substantive material that would have made the affirmation stronger.
But wait, you say, the rule provides “unless otherwise permitted by the court,” meaning that an application may be made to the court to file papers in excess of the word counts. True. Two problems. First, and most critically, the recognition that the word count is insufficient generally comes late in the day, literally (damn you, NYSCEF 11:59 p.m. filings), when seeking leave of court is not practicable. Second, the very nature of the application may be summarized “judge, permission to make more work for you (respectfully).” Good luck with that.
So, recognizing that an attorney’s argument and marshalling of proof and law can be subject to an (admittedly, generally generous word count), critical witness testimony should not be so limited. Hence, the carve-out that “[t]hese word limitations shall not apply to evidentiary materials such as affidavits, affirmations or reports from lay or expert witnesses.”
Conclusion
These two rule changes come just in time for summer, and we look forward to more time at the beach now that we no longer have to prepare statements of material fact and no longer have to spend time editing key witness affirmations, often with a chainsaw rather than a scalpel, to satisfy word count rules. We only wish the effective date had been designated as July 4, a different, and far more famous, Liberation Day. Have a wonderful summer and, with all this extra free time, use a bit of it to periodically check for Court Rule Amendments.[6]
David Paul Horowitz, of the Law Offices of David Paul Horowitz, has represented parties in personal injury, professional negligence, and commercial litigation for over 30 years. He also acts as a private arbitrator and mediator and a discovery referee overseeing pre-trial proceedings and has been a member of the Eastern District of New York’s mediation panel since its inception. He drafts legal ethics opinions, represents judges in proceedings before the New York State Commission on Judicial Conduct and attorneys in disciplinary matters, and serves as a private law practice mentor. He teaches classes in New York practice, professional responsibility, and electronic evidence and discovery at Columbia Law School.
Katryna L. Kristoferson is a partner at the Law Offices of David Paul Horowitz and has litigation experience across many practice areas. She has lectured on CPLR update, motion practice, and implicit bias CLEs, and teaches a course on bias and the law at the Elizabeth Haub School of Law at Pace University.
Endnotes:
[1] The June 13, 2022 amendment (effective July 1, 2022), amended the existing rule as to subparagraphs (a) and (c) and added subparagraph (e).
[2] Under Administrative Order 270-20, the chief administrative judge adopted a number of rules from the Commercial Division, explaining, “the Commercial Division of New York State Supreme Court is an efficient, sophisticated, up-to-date court, dealing with challenging commercial cases, and has had as its primary goal the cost-effective, predictable and fair adjudication of complex commercial cases,” and “since its inception the Commercial Division has implemented rules, procedures and forms especially designed to address the unique problems of commercial practice . . . the Commercial Division has functioned as an incubator, becoming a recognized leader in court system innovation and demonstrating an unparalleled creativity and flexibility in the development of rules and practices. . .. ”
[3] The April 27, 2022 amendment amended the existing rule as to subparagraph (b), to require a party responding to a material statement to interlineate their responses.
[4] Paley v. Curious Holdings, LLC, 233 A.D. 3d 590 (1st Dep’t 2024) (“The court did not err in granting plaintiff’s motion despite the failure to comply with Uniform Rules for the Trial Courts (22 N.Y.C.R.R.) § 202.8-g. The court’s individual rules made compliance optional”). Argueta v. Hall and Wright LLC, 230 A.D3d 1200 (2d Dep’t 2024) (“As an initial matter, even though the plaintiff failed to submit a paragraph-by-paragraph response to H & W’s statement of material facts, the Supreme Court was not required to deem the assertions therein admitted by the plaintiff.”).
[5] Based on the respective NYCEF dockets, in Paley the original motion was filed Sept. 15, 2021, and in Argueta the original motion was filed Sept. 13, 2021.
[6] The Supreme Court Rule Amendments can be found at https://ww2.nycourts.gov/rules/amendments.shtml.
