NYCRR § 3000.9(b)(1) provides that ““summary determination” may be granted “if, upon all of the papers and proofs submitted, the administrative law judge finds . . . no material and triable issue of fact is presented and that the . . . judge can, therefore, as a matter of law, issue a determination in favor of any party.” A motion for summary determination forces the Department to “lay bare”” its proof at an earlier stage. In that sense, the motion serves as a proxy for discovery. It can also provide an effective means of presenting the case to the ALJ prior to the hearing in a light most favorable to the taxpayer. Most evidence, which often consists of auditor’s testimony, his logs and other documentary evidence, is typically presented for the first time at the hearing before the ALJ in Troy.
A motion for summary judgment may eliminate the undesirable element of surprise. Surprise at hearing may derail even the strongest of cases. Once served with a motion for summary determination, the Department must respond by proving the existence of a genuine issue of triable fact. Facts not controverted in opposing papers are deemed admitted. Fair v. Stanley Fuchs, 631 N.Y.S.2d 153 (1st Dept. 1995) held that a party opposing a motion for summary judgment “must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” Accordingly, affirmations of counsel would be insufficient to defeat the motion. Affidavits by the auditor as well as other evidence in admissible form would seemingly be required to oppose to such a motion.
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