Recently, there was some discussion in another thread about the necessity and desirability of a defendant filing a motion for defensive summary judgment. A New York appellate case decided this week seems to afford some more support for the proposition that a defendant can sometimes benefit from a motion for defensive summary judgment. The case is HSBC Bank USA v. Hernandez:
HSBC Bank USA v. Hernandez, 2012 NY Slip Op 01434 (N.Y. App. 2nd Dept. 2012)
As I read the decision, the plaintiff failed to prove its standing. But the plaintiff's failure to prove standing in its own motion for summary judgment does not inter alia entitle a defendant to a dismissal, absent an application to the court for a judgment via a summary judgment procedure.
This actually seems to be a reasonable result. It might be otherwise if the proof presented affirmatively showed a lack of standing. The absence of proof of standing is something different.
Even where a plaintiff fails to demonstrate standing in respect of its own motion, further evidence of standing might still be adduced either in a response to a defensive motion for summary judgment or at trial.
If the plaintiff's inability to show standing is real, this might still be corrected by a future defensive motion for summary judgment (or at trial). If the plaintiff's inability was merely owing to an evidentiary deficiency at the plaintiff's summary judgment proceeding, the defendant will wish that it had filed a cross-motion to take advantage of the plaintiff's evidentiary problems while the plaintiff was still disorganized and incompetent!