Q: Can a motion for summary judgment or to dismiss be made during trial w.new evidence or need it be a motion under 4401?
The trial began months ago w.the other side rested but due to Covid-19, put on hold. During the pandemic, I lost my job and attorney who got Covid-19. Pre-trial, he filed a MTD 3211 on estoppel based on a sister-state's trial they lost on same matter, but other side lied saying it was not on merits and the case is on appeal. During the NY court closing, the appeals case was heard and they lost. My former attorney wanted to file a motion based on the appeals decision on estoppel and wrote the core of the motion's argument which he sent me before he became ill. The problem is I just don't know how to file it. A clerk said to do an order to show cause with the motion because of the lack of time before trial but didn't know what type of motion. I believe it's a motion for judgment under 4401 bc the other side rested, but I don't know if that standard allows a motion based on collateral/judicial estoppel. i assume OTSC is the court to stay the trial and hear my motion first. Please help!
Lawyers, want to be a Justia Connect Pro too? Learn more ›
- New York
- (646) 775-3455
- View Profile
- Answered
A: I would not do this by yourself. You should hire an attorney. CPLR 4401 usually relates to the evidence presented at trial. CPLR 3212 is a motion for summary judgment, asking the court for judgment based upon the law. If you previously moved for the relief requested a motion to renew or reargue may be the proper vehicle. That is under CPLR 2221. There are different requirements for each. There are also timing issues to consider.
1 user found this answer helpful
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
