When the case eventually proceeded into litigation, we were able to establish that the machine was significantly altered from its intended use and moved to dismiss the
case by way of summary judgment.
That test prevented a judge considering a summary judgment motion from exercising newly conferred powers in Rule 20.04 (2.1) of the Rules of Civil Procedure to weigh evidence, evaluate credibility, and draw reasonable inferences unless he or she was satisfied a full appreciation of the evidence and issues could be
achieved by way of summary judgment.
The Court found that the motion judge failed to assess the fairness of deciding the
actions by way of summary judgment in the context of the simplified rules procedural constraints under Rule 76.04 of the Rules of Civil Procedure («Rules»).
Representation of a mechanical contractor in the prosecution of multimillion - dollar delay and inefficiency claims against a New Jersey school district and its designers, defeating «No Damages for Delay» provision
asserted by way of summary judgment and obtaining favorable settlement for client following three days of mediation.
The Court of Appeal found that motion judge failed to assess the fairness of deciding this matter
by way of summary judgment given the conflicting evidence and the fact that Rule 76.01 prohibited from cross-examining the plaintiffs on their affidavits.
In case any doubts remain the Court confirmed in Armone at para. 12 that a straight forward without cause wrongful dismissal is usually amenable to be
decided by way of a summary judgment motion.
These issues do not lend themselves to
resolution by way of summary judgment and as such most SLAPP motions should be doomed to failure as are motions for summary judgment on the same issues.
We have considerable experience in pursuing and resisting estoppel arguments and have dealt with rectification claims both
by way of summary judgment and at a full hearing.
Claims dismissed
by way of summary judgment motion.
The Court of Appeal determined both that the Motion Judge did not err in deciding the case
by way of summary judgment, and that there was no basis to intervene in the decision itself.
In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved
by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
In determining whether a case should be disposed of by way of a motion for summary judgment, the motion judge must apply a «full appreciation» test and ask whether the full appreciation of the evidence can be achieved
by way of summary judgment, or whether a trial is required.