Prima facie really does not mean prima facie

A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 2011 NY Slip Op 21243 (App. Term 2d Dept. 2011)

I am not going to lose sleep over AB Medical not prevailing on this appeal – remember when AB  used to always win?  I was in diapers then.

Here is the holding:

“An order deciding a motion for summary judgment determines only whether the affidavits and proofs submitted to the court in support of, or in opposition to, the motion entitle a party to a pretrial judgment (see CPLR 3212 [b]; Cushman & Wakefield v 214 E. 49th St. Corp., 218 AD2d 464, 468 [1996]). A court’s finding that a movant has made a prima facie showing of its entitlement to summary judgment represents nothing other than that the movant has shifted the burden to the opposing party to raise a triable issue of fact, just as a court’s “denial of a motion [*2]for summary judgment establishes nothing except that summary judgment is not warranted at this time” (Siegel, NY Prac § 287, at 487 [5th ed]).

In our prior order, we found only that plaintiff had submitted proof, in admissible form, of each fact required to demonstrate its entitlement to judgment as a matter of law. The order did not include a finding, either explicit or implicit, that such facts were incontrovertible, and thus that they could be deemed established for all purposes in the action pursuant to CPLR 3212 (g). Indeed, the very shifting of the burden of proof upon a finding that a plaintiff has demonstrated its prima facie entitlement to summary judgment presupposes that the defendant, in opposition, might be able to rebut any aspect of the plaintiff’s case. It follows, then, that there is nothing in this court’s order suggesting that defendant could not, at trial, dispute any aspect of plaintiffs’ case. As a result, the Civil Court improperly relied upon this court’s prior order in limiting the issues for trial pursuant to CPLR 3212 (g).”

This makes sense to some extent.  In a 5102(d) action, let us say that Plaintiff moves for SJ on the basis that he proved a fracture, prima facie, but the defendant raised an issue of fact that there really was no fracture.  Would it make sense for a court to grant Plaintiff 3212(g) relief, requiring Defendant to prove a lack of fracture at trial?  (we are assuming that liability is not an issue)

Reverse it.  What would happen if Defendant on SJ prima facie proved that the Plaintiff did not have a fracture, and Plaintiff raised an issue of fact that there was a fracture?  Does this mean Defendant does not have to offer any proof at trial?

Third situation: Both parties move and cross move for summary judgment and the court holds that: (1) Plaintiff made out its  prima facie entitlement to summary judgment through proof that there was a fracture, but Defendant raised a triable issue of fact showing there was not fracture; and (2) Defendant in support of his motion prima facie demonstrated there was no fracture, but Plaintiff raised a triable issue of fact that there was a fracture.

You see how tricky this gets.