I was all prepared to defend my opposition to the plaintiff's summary judgment on the trial date. But in court, the plaintiff immediately withdrew the motion. Gave no reason. No fight necessary on my part.
The plaintiff probably withdrew the motion because the affidavit and some of the supporting documentation had nothing to do with the case at hand. Big, crazy mistake I guess. They would have surely lost.
Here's my question.
Could I legally reference any of the documents contained in that motion as evidence in a DIFFERENT case - but with the same plaintiff and defendant? Does withdrawing the motion effectively & legally withdraw from the record any document attached to that motion?
Is there some other way to get it into evidence for the new case? Hope this makes sense.
To add to my colleague's response, please note that parties cannot take inconsistent factual positions in court due to the doctrine of judicial estoppel, and you may be able to exploit inconsistencies as may be appropriate.
I'll also add 2 comments: at least a couple of things are terribly wrong in terms of wasting time and judicial resources when there are 2 separate lawsuits between the same parties, and one of them files a motion for summary judgment but then withdraws it before the hearing.
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I think that you are suggesting that there was documentary evidence or an affidavit from either plaintiff or some witness that was submitted to the court as part of plaintiff's motion for summary judgment, If that is the case, you may use such documents in a different case as proof of the plaintiff's admission as to any particular state of facts.
The withdrawal of the motion only gets rid of the motion; it does not undo what was said.
Good luck to you.
Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.
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