Here is how Rule 56.1 statements work on summary judgment motions

Let this case serve as a warning for plaintiff-side lawyers who have to respond to summary judgment motions. Under the rules, the defendant in seeking summary judgment has to provide a list of undisputed facts for the district court to ponder as it determines whether there are enough undisputed facts to take this case from the jury and decide the case from the bench, on the summary judgment papers. The plaintiff has to respond to that statement of facts. When happens when the plaintiff fails to properly do so?

The case is Malarczyk v. Lovgren, a summary order issued on November 21. The statement of undisputed facts is called a Rule 56.1 statement, named after the federal rule governing summary judgment motions. Defendant's Rule 56.1 statement has to be in numbered-paragraph form and cite to the record for each undisputed fact. Example: "Paragraph 10: Plaintiff received a negative performance review on June 15, 2022. See Exhibit A to Affirmation of Joe Blow." Plaintiff can admit or deny this statement, but if he denies it, he must cite to the record as well. Example: "Denied. On June 15, 2022, the performance review was not 'negative' but lukewarm at worst, as Plaintiff received three positive ratings out of eight. See Exhibit 3 to Affirmation of Vincent Barbarino." This rule is so beloved by judges that even the state court system has now adopted it on summary judgment motions as well.

The court's rules in all four federal districts in New York say that failure to controvert the defendant's Rule 56.1 statement means the plaintiff concedes that fact. This is an important rule, obviously, as failure to controvert a disputed fact can cause the trial court to dismiss the case upon finding that plaintiff really did receive a negative performance review on June 15, 2022, only a week prior to his termination, thereby undermining the discrimination claim. The district court in this case dropped a footnote in this case expressing puzzlement as to why plaintiffs continue to (sometimes) violate the Rule 56.1 requirement While the trial court has discretion whether to overlook this kind of mistake, if the court does not overlook it and the case is dismissed, the plaintiff is in trouble on appeal. That's this case. 

Since plaintiff did not controvert the defendant's Rule 56.1 statement, instead filing a document bearing that title without properly citing to the record, all the facts in the Defendant Trooper's Rule 56.1 statement are deemed true for purposes of this case. That ends plaintiff's malicious prosecution claim, which the Trooper challenged on the basis that probable cause existed to arrest plaintiff. 

I note that the facts as set forth in the district court ruling show this episode unfolded just a stone's throw from my office, just up the road from me. The Court of Appeals (Lohier, Nardini and Robinson) says plaintiff loses the case because another officer told the Defendant that plaintiff had alcohol in his motor vehicle, ran a red light, drank the alcohol while driving, failed to stay in his lane, and threw the beer can out the window. As the defendant saw plaintiff's bloodshot eyes and smelled alcohol on his breath, he had probable cause to arrest plaintiff, killing the malicious prosecution claim.