On December 23, 2022, the Fourth Department issued a decision in On the Water Prods., LLC v. Glynos, 2022 NY Slip Op. 07320, excusing the failure to submit a statement of undisputed facts, explaining:
In granting plaintiff’s motion, the court determined that it was compelled to deem admitted the assertions set forth in plaintiff’s statement of material facts because neither defendant submitted a counter statement of undisputed facts pursuant to the Uniform Rules for the New York State Trial Courts. That was error. Although the court had discretion under section 202.8-g (former [c]) to deem the assertions in plaintiff’s statement of material facts admitted, it was not required to do so. Blind adherence to the procedure set forth in 22 NYCRR 202.8-g was not mandated.
Here, considering that plaintiff’s statement of material facts did not fully comply with 22 NYCRR 202.8-g (d) and ignored the pivotal factual dispute arising from discovery, we conclude that, although it would have been better practice for defendants to submit a paragraph-by-paragraph response to plaintiff’s statement, the court abused its discretion in deeming the entire statement admitted.
(Internal quotations and citations omitted).