Committee Note – 1959

This rule is the same as Rule 56 of the Federal Rules of Civil Procedure with the amendments to paragraphs (c) and (e) recommended by the Federal Advisory Committee in 1955; and with the addition of paragraph (h) to make clear that the procedure is not applicable where there is a factual issue to be determined by the court or jury. The reasons for the amendments to paragraphs (c) and (e) are stated by the Federal Advisory Committee as follows:

“Subdivision (c). The specific provision, made by the amendment, allowing summary judgment to be granted against the party who has moved therefore, is in accord with N.Y.C.P. Rule 113 and Wis.Stat. Sec. 270.635(3) (1951), as well as the urging of commentators. McDonald, Summary Judgments, 30 Tex.L.Rev. 285, 303 (1952); Clark, The Summary Judgment, 36 Minn.L.Rev. 567, 570-571 (1952); Comment, Summary Judgment, 25 Wash.L.Rev. 71, 76-77 (1950). It codifies a result already achieved by most federal courts. See 6 Moore’s Federal Practice Par. 56.12 (2d ed. 1953); 3 Barron & Holtzoff, Fed. Prac. & Proc. §1235 (1950) [See now, Wright, Federal Practice and Procedure: Civil].

“Subdivision (e). Some recent cases, particularly in the Third Circuit, have held that a mere allegation in the pleading is sufficient to create a genuine issue as to a material fact, and thus prevent summary judgment, even though the pleader has made no attempt to controvert affidavits and other evidentiary matter presented by his opponent; e. g., Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580, 581 (3d Cir. 1948); Reynolds Metals Co. v. Metals Disintegrating Co., 8 F.R.D. 349 (D.N.J. 1948 ), aff’d 176 F.2d 90 (3d Cir. 1949); Chappell v. Goltsman, 186 F.2d 215, 218 (5th Cir. 1950); and cases cited in 6 Moore’s Federal Practice Par. 56.11[3], n. 16 (2d ed. 1953). This line of cases is termed “patently erroneous” in Note, 99 U. of Pa.L.Rev. 212, 214-215 (1950), citing many contrary authorities. The purpose of Rule 56 is to pierce the formal allegations of the pleadings and reach immediately the merits of the controversy. If pleading allegations are sufficient to raise a genuine issue as against uncontradicted evidentiary matter, this remedy then becomes substantially without utility. Engl v. Aetna Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943). The view of most cases and commentators is that, where the motion for summary judgment is supported by depositions or affidavits, the opposing party must make a similar presentation to show the existence of a genuine issue of fact, or suffer judgment to be entered. 3 Barron & Holtzoff, Fed.Prac. & Proc. §1235 (1950) [See, now, Wright Federal Practice and Procedure: Civil]. 6 Moore’s Federal Practice 56.11[??], n. 21 (2d ed. 1953), and cases there cited; id. at 56.15[??]; Asbill & Snell, Summary Judgment Under the Federal Rules–When An Issue of Fact Is Presented, 51 Mich.L.Rev. 1143, 1159-1165 (1953); Shientag, The Summary Judgment 24 (1941); Kennedy, The Federal Summary Judgment Rule, 13 Brooklyn L.Rev. 5 (1947); Comm., “Genuineness” of Issues on Summary Judgment, 4 Fed.Rules Serv. 940.

“The amendment to subdivision (e) states this last principle and thus makes it clear that pleading allegations cannot, in themselves, create a genuine issue of material fact when summary judgment is sought. By emphasizing the function of the motion for summary judgment, the amendment may stimulate more frequent and effective use of this device, as urged by the Judicial Conference of the United States, in its Report of Sept.1948, pp. 36-37, and by commentators. Yankwich, Summary Judgment under Federal Practice, 40 Calif.L.Rev. 204 (1952); Clark, Special Problems in Drafting and Interpreting Procedural Codes and Rules, 3 Vand.L.Rev. 493, 502-505 (1950); Clark, The Summary Judgment, 36 Minn.L.Rev. 567 (1952); Wright, Modern Pleading and the Pennsylvania Rules, 101 U. of Pa.L.Rev. 909, 936-937 (1953); Comment, Summary Judgment, 25 Wash.L.Rev. 71 (1950); Note, The Scope of Summary Judgment Under the Federal Rules, 5 Vand.L.Rev. 607 (1952); Note, Summary Judgments in the Federal Courts, 99 U. of Pa.L.Rev. 212 (1950); see McAllister, Pre-Trial Practice in the Southern District of New York, 12 F.R.D. 373, 378. Compare the holding that summary judgment granting specific performance can never be proper, for a party cannot be entitled to equitable relief as a matter of law, Seaboard Surety Co. v. Racine Screw Co., 203 F.2d 532 (7th Cir. 1953), with the grant of summary judgment of specific performance in Dale v. Preg, 204 F.2d 434 (9th Cir. 1953), and Palmer v. Chamberlin, 191 F.2d 532, 27 A.L.R.2d 416 (5th Cir. 1951), and as expressly authorized in N.Y.C.P. Rule 113. See also the grant of summary judgment of injunction in United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), and Houghton, Mifflin Co. v. Stackpole Sons, 113 F.2d 627 (2d Cir. 1940).

“The amended rule does not, of course, require the grant of summary judgment in a case where such judgment is not proper even though the facts be taken as in the moving party’s affidavit.

“The court may deny the motion if for any reason summary judgment would be inappropriate, even though the opposite party has not submitted an affidavit. The court may order a continuance in accordance with the provisions of Rule 56(f) where a party makes a substantial showing by affidavit that he cannot then present the facts essential to justify his opposition to judgment.”