bill of particulars conflicting with deposition testimony

Bill of particulars conflicting with deposition testimony trial#

The Court found that denial of summary judgment was appropriate in light of the credibility issues of the witnesses and the conflicting inferences that could be drawn from the evidence submitted. May 10, 2017) (“Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact.”) (citation and internal quotation marks omitted). A motion for summary judgment, therefore, “ ‘should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility’ ” Ruiz v. The court’s function on a motion for summary judgment is “to determine whether material factual issues exist, not to resolve such issues.” Lopez v. Wolman Rink Operations, LLC, 94 A.D.3d 963 (2d Dept. The movant cannot satisfy this burden by merely pointing to gaps in the plaintiff’s case. On a motion for summary judgment, a moving defendant must affirmatively demonstrate the merit of its claim or defense.

Bill of particulars conflicting with deposition testimony trial#

For this reason, the ultimate burden of proof after trial plays no part in the assessment of whether there are relevant factual issues presented on a motion for summary judgment. The Appellate Division, Second Department, affirmed.Ī defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form, even though the ultimate burden of proof at trial falls upon the plaintiff. The defendants appealed the denial of their motion.

The motion court denied the motion and cross motion.

UB opposed the motion and cross-moved for summary judgment dismissing the defendants’ counterclaims. The defendants moved for summary judgment dismissing the complaint, arguing, among other things, that UB lacked any direct evidence of their participation in the scheme. The defendants denied the allegations and asserted counterclaims against UB. In particular, UB alleged that sudden and drastic shifts in the defendants’ empty container redemption volume indicated fraudulent activity and corresponded in time with a double-redemption scheme uncovered on Long Island in the summer of 2009. UB alleged that the defendants fraudulently obtained payments from it under the Returnable Container Act by redeeming empty beverage containers that had already been redeemed by a deposit initiator.

The plaintiff, UB Distributors, LLC (“UB”), commenced the action against the defendants, asserting causes of action sounding in fraud, negligent misrepresentation, conversion, and unjust enrichment, among other things. May 16, 2018) ( here), will result in denial of the motion. The failure to do so, as the defendants learned in UB Distributors, LLC v. Regardless of the timing, the moving party must establish their prima facie entitlement to judgment as a matter of law. Sometimes, a party may conclude that the facts and law necessitate the filing of a motion for summary judgment, even before the close of discovery. If the defendant files an answer or the court denies the motion, discovery ensues. For example, he/she can answer the complaint or file a motion to dismiss. When a complaint is served and filed, a defendant can respond to the pleading in many ways. Anti-Retaliation Under The SEC And CFTC Whistleblower ProgramsĬourt Finds Conflicting Inferences And Credibility Issues Too Great To Satisfy Summary Judgment Burden Print Article.The Confidentiality Protections Under The SEC/CFTC Whistleblower Program.The Whistleblower’s Information Must Lead To a Successful Enforcement Action.The Whistleblower Must Voluntarily Provide Original Information.The Process of Submitting A Whistleblower Claim.Eligibility Under The IRS Whistleblower Program.The Anti-Retaliation Provisions Of The False Claims Act.What to Expect When Blowing The Whistle.