Summary judgment motions often follow the completion of discovery and the filing of the note of issue, where a party seeks to resolve issues of liability as a matter of law prior to trial. The proponent of such a motion must make a prima facie showing of entitlement to summary judgment based upon admissible evidence so as to shift the burden to the adversarial party to raise a material triable issue of fact.1
Expert opinions and the affidavits of lay witnesses are often critical in connection with these motions. However, serious issues may arise when, out of left field, the answering papers contain new evidence, in the affidavit of a never disclosed witness, or an inconsistent revelation by an opposing party, all of which are self-serving material, in an attempt to raise an issue of fact to defeat summary judgment. What is the recourse for the moving attorney?
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