N.Y. C.P.L.R. § 3212

CPLR 3212(a) generally prevents a court from granting summary judgment before issue is joined.

Blunt v. Clinton Hill Apts. Owner Corp. · filed 2020-07-01(a)

A court is generally powerless to grant a motion for summary judgment made prior to joinder of issue ( see CPLR 3212[a]; City of Rochester v Chiarella , 65 NY2d 92, 101; Union Turnpike Assoc., LLC v Getty Realty Corp. , 27 AD3d 725, 727; see e.g. Remote Meter Tech. of NY, Inc. v Aris Realty Corp. , 83 AD3d 1030, 1031).

A motion for summary judgment under CPLR 3212 is premature before issue is joined.

Krusen v. Moss · filed 2019-07-18

In view of this procedural posture, defendant's motion was premature to the extent that he sought summary judgment.

Section 3212(a) does not permit summary judgment before issue is joined by service of an answer.

Metz v. Coopers & Lybrand · filed 1994-12-08(a)

To the extent that Supreme Court granted Lindy’s motion pursuant to CPLR 3212, we agree with plaintiffs that the court erred because Lindy’s answer had not been served.

Parties may treat a summary judgment motion as properly before the court under CPLR 3212(a) when they chart their own procedural course as if issue had been joined.

Ryan v. Bettiol · filed 1995-01-05(a)

This argument is not particularly compelling, given that the parties charted their own procedural course and treated defendants’ summary judgment motion as if issue had indeed been joined (see, Patten Corp. v Association of Prop. Owners, 172 AD2d 996, 999-1000).

Section 3212(a) bars a court from entertaining a summary judgment motion before issue is joined.

Gormel v. Prudential Insurance Co. of America · filed 1994-02-04(a)

In this procedural posture, neither party is entitled to summary judgment. A court may not entertain a motion for summary judgment prior to joinder of issue (see, CPLR 3212 [a]).

Section 3212(a) permits a summary judgment motion only after issue has been joined, including when a supplemental complaint adds a new cause of action.

Emunim v. Town of Fallsburg · filed 1993-12-10(a)

However, the plaintiff’s motion for summary judgment must be denied because it is premature. "Any party may move for summary judgment in any action, after issue has been joined” (CPLR 3212 [a]).

A summary judgment motion is premature when the defendant has not answered the complaint or submitted to complete discovery.

Jaramillo v. Callen Realty · filed 1992-06-08

The City has not answered the complaint in Beres and has not submitted to complete discovery. Accordingly, that branch of the motion that seeks summary judgment is denied as premature.

Section 3212(a) requires joinder of issue before a party moves for summary judgment; such a motion assumes acceptance of the opposing party’s answer.

Wittlin v. Schapiro's Wine Co. · filed 1991-12-05(a)

Moreover, it was an improvident exercise of the IAS part’s discretion to have granted a default judgment in the absence of plaintiff’s motion for such relief (see, CPLR 3215 [a]), particularly since plaintiff’s motion for summary judgment presupposed the joinder of issue, which in turn assumes the acceptance of defendants’ answer.

Section 3212 does not permit summary judgment on an amended complaint when issue has not been joined on a cause of action in that complaint.

State University Construction Fund v. Aetna Casualty & Surety Co. · filed 1991-06-13

Since issue was not joined as to the cause of action for a declaratory judgment contained in the amended complaint, Supreme Court was powerless to grant summary judgment on the amended complaint pursuant to CPLR 3212.

A motion for summary judgment under CPLR 3212 is premature before issue has been joined.

Mazurick v. Chalos · filed 1991-04-29

Additionally, although Michele Chalos’ separate motion pursuant to CPLR 3212 was not properly before the court, since issue had not yet been joined, the court may search the record and grant summary judgment to Michele Chalos, based upon the motion of Michael Chalos pursuant to CPLR 3211 (c).

Section 3212(a) makes a summary judgment motion premature before issue is joined.

Patten Corp. v. Ass'n of Property Owners of Sleepy Hollow Lake, Inc. · filed 1991-04-18(a)

While a motion for summary judgment is premature absent joinder of ... issue (CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101), CPLR 3211 (c) permits the court, after adequate notice to the parties, to treat a motion to dismiss as a motion for summary judgment.

Section 3212 permits summary judgment only after issue is joined.

Litchhult v. Reiss · filed 1991-01-30

Summary judgment under CPLR 3212 is available only after issue is joined.

After responsive pleadings are served, a dismissal motion may be brought under CPLR 3212 with notice to the opposing party.

DeSanctis v. Laudeman · filed 1991-01-24

Accordingly, we will uphold the denial of defendant’s motion to dismiss but do so without prejudice, so as to allow him an opportunity to bring a proper motion pursuant to CPLR 3212 with applicable notice to all concerned.

Section 3212(a) does not permit summary judgment against a defendant before issue has been joined and the defendant has had an opportunity to assert defenses.

J. Castronovo, Inc. v. Hillside Development Corp. · filed 1990-04-09(a)

Summary judgment may not properly be granted in favor of a plaintiff and against a defendant before issue has been joined and before the defendant has been given an opportunity to assert defenses (see, CPLR 3212 [a]; ...).

Section 3212(a) permits a summary judgment motion only after issue is joined.

Afco Credit Corp. v. Mohr · filed 1989-12-21(a)

CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue. ... In contrast, here, the answer was never served.

CPLR 3212(a) requires a defendant to answer a complaint before moving for summary judgment.

Moezinia v. Damaghi · filed 1989-07-06(a)

CPLR 3212 (a) requires that a motion for summary judgment be made "after issue has been joined.” Thus, once plaintiff served his first formal complaint (the "amended complaint”), the defendant was required to serve an answer before moving for summary judgment. Thus, the motion court lacked jurisdiction to grant summary judgment dismissal on the amended complaint.

CPLR 3212(a) does not permit summary judgment on a counterclaim before issue has been joined on it.

Westchester Express, Inc. v. State Insurance Fund · filed 1989-06-20(a)

As a matter of practice summary judgment under CPLR 3212 (a) would not lie because issue had not been joined on the counterclaim, properly treated by the court as a complaint (Edelman v Edelman, 88 Mise 2d 156, 159).

CPLR 3212 does not permit summary judgment before joinder of issue.

James Mirabito & Sons, Inc. v. Mirabito · filed 1986-12-15

Additionally, as a matter of procedure, the defendant in no event can obtain summary judgment prior to joinder of issue.

Section 3212(a) requires issue to be joined before a party moves for summary judgment; a preanswer motion is treated as a motion to dismiss for failure to state a claim.

Crosland v. New York City Transit Authority · filed 1986-09-11(a)

In essence, the Authority’s motion was one to dismiss for failure to state a claim, because issue had not been joined when it was made (CPLR 3212 [a]).

Section 3212(a) generally requires issue to be joined before a party moves for summary judgment, though special circumstances may justify an exception.

Mullins v. 510 East 86th Street Owners, Inc. · filed 1984-12-19(a)

With respect to the cross motion for summary judgment, it must be denied as premature as defendant has not served its answer and thus issue has not as yet been joined. (CPLR 3212 [a].)

Section 3212(a) makes a motion for summary judgment premature until issue has been joined.

288/98 West End Tenants Corp. v. Mosesson · filed 1984-12-04(a)

In relation to plaintiff’s cross motion, summary judgment is premature insofar as issue has not yet been joined (see, CPLR 3212 [a]; Alro Bldrs. & Contractors v Chicken Koop, 78 AD2d 512).

A motion for summary judgment on a counterclaim is premature before issue is joined on that counterclaim.

Elias v. Serota · filed 1984-10-01(a)

Serota’s cross motion for summary judgment was properly denied, however, not only because it was made before issue was joined on the counterclaims (see CPLR 3212, subd [a]; Rich v Lefkovits, 56 NY2d 276), but also because Elias raised an issue of fact as to whether the closing papers prepared by Serota’s attorneys were inconsistent with the partnership agreements as implemented by the auction.

Section 3212 requires issue to be joined before a court may grant summary judgment.

Pisano v. County of Nassau · filed 1963-11-26

Counsel for the moving parties has correctly pointed out that this request cannot be granted since issue has not been joined (CPLR 3212).

Section 3212 does not permit a summary judgment motion before issue is joined.

Lustig v. Congregation B'Nai Israel · filed 1970-02-17

A motion for summary judgment pursuant to CPLR 3212 cannot be made before issue joined (see 6 Carmody-Wait 2d New York Practice, § 39 :17).

Section 3212 requires issue to be joined before a court may grant summary judgment.

Campbell v. Lindsay · filed 1974-06-19

Although the claim of the plaintiffs that they presently serve as the de facto commanders and supervisors of detective squads appears to have ample substantiation, their cross motion for summary judgment must be denied, as issue has not yet been joined.

Section 3212 does not permit summary judgment before issue has been joined.

Chemical Bank — Eastern N. A. v. Love Lumber Co. · filed 1974-12-18

Neither can relief be granted to the plaintiff under CPLR 3212. Issue has yet to be joined.

Section 3212(a)'s requirement that issue be joined does not bar summary judgment when the moving party’s papers are properly treated as an answer.

Connecticut General Life Insurance v. Boni · filed 1975-05-13(a)

The contention that the appellant’s motion for summary judgment may not be granted at this stage of the proceeding on the ground that issue has not been joined (CPLR 3212, subd [a]), is without merit. It appears that Special Term properly treated the appellant’s papers as constituting an answer and accordingly, we may, as did Special Term, consider the merits of the application.

CPLR 3212 permits a summary judgment motion only after issue is joined; a defendant’s default calls for proof by affidavit and a default judgment.

Hetler v. Hetler · filed 1979-03-07

The practice in the First Department is to distinguish between a motion for summary judgment which is available only after issue is joined and a default where proof is made by affidavit. ... However, proposed findings of fact, conclusions of law and a revised judgment after default (rather than a summary judgment) must be submitted.

Section 3212(a) does not permit summary judgment before issue has been joined.

Woodley v. Butler · filed 1979-10-31(a)

The cross motion for summary judgment is denied (CPLR 3212, subd [a]) as issue has not been joined.

Section 3212(a) requires issue to be joined before a party may move for summary judgment on a counterclaim.

Hickox v. Hickox · filed 1979-11-08(a)

First of all, the motion was premature since issue had not been joined on the counterclaim (CPLR 3212, subd [a]).

A summary judgment motion should not be denied as untimely when the delay was needed to complete depositions essential to making the motion.

Rule Resources, Ltd. v. Reliance Group, Inc. · filed 1980-04-24(f)

When the reason for delay is to complete depositions (cf. CPLR 3212, subd [f]), which as the Appellate Division found was essential to the making of the motion, denial of the motion as untimely is error.

Section 3212(a) limits a summary judgment motion made before issue is joined on a counterclaim to the allegations in the complaint and answer, excluding the counterclaim.

Civil Service Employees Ass'n v. County of Orange · filed 1980-06-16(a)

Since the cross motion for summary judgment was made prior to joinder of issue on the counterclaim, the cross motion was limited to consideration of the allegations in the complaint and answer exclusive of the counterclaim (see CPLR 3212, subd [a]).

A motion for summary judgment under CPLR 3212 is premature before an answer is served and issue is joined.

Alro Builders & Contractors, Inc. v. Chicken Koop, Inc. · filed 1980-09-30

Special Term correctly concluded that the motion and cross motion for summary judgment were premature. Issue had not been joined by service of an answer (CPLR 3212).

CPLR 3212(a) requires issue to be joined before summary judgment is granted.

Kennis v. Sherwood · filed 1981-06-15(a)

In any event, summary judgment is not appropriate since issue between the plaintiffs and Aetna Casualty has not been joined (CPLR 3212, subd [a]).

Section 3212 permits a judgment dismissing a complaint only after issue has been joined.

Church of Christ the King, Inc. v. City of Yonkers · filed 1982-09-07

Defendant improperly seeks a judgment dismissing the complaint. Such relief is only available pursuant to CPLR 3212 after issue has been joined.

Section 3212(a) requires issue to be joined before summary judgment is granted; a later answer raising a triable defense does not cure a premature grant.

Miller v. Nationwide Mutual Fire Insurance · filed 1983-02-28(a)

CPLR 3212 (subd [a]) provides in pertinent part, “[a]ny party may move for summary judgment in any action, after issue has been joined.” ... Since a prejoinder motion is premature even though subsequent papers present no triable issue of fact ... where, as here, the postjudgment pleading raises a triable issue, summary judgment is clearly unwarranted.

A motion for summary judgment cannot be made before issue is joined.

Saxon v. Saxon · filed 1982-12-17(a)

The court erred in granting partial summary judgment upon a motion made before issue was joined (CPLR 3212, subd |a]).

Section 3212(a) permits summary judgment only after issue has been joined; an unanswered counterclaim raising no new issues does not prevent it.

City of Rochester v. Chiarella · filed 1984-03-06(a)

While summary judgment may be granted only after issue has been joined (CPLR 3212, subd [a]; ...), in the instant declaratory judgment action there has been a complaint and an answer and the counterclaims raise no new issues.

Section 3212 does not permit a court to consider the merits of a summary judgment motion when issue has not been joined.

Fisher v. Velasquez · filed 1984-10-12

As a natural consequence of the dismissal, issue herein has not been joined, and the court cannot properly entertain the ... merits of the motion for summary judgment brought pursuant to CPLR 3212.

CPLR 3212(a) requires issue to be joined before a party may obtain summary judgment.

Ass'n v. Town Board · filed 1987-04-17(a)

The cross motion must be denied as premature, inasmuch as issue is not yet joined (see, CPLR 3212 [a]; 7804 [f]; Key Bank v Lake Placid Co., 103 AD2d 19, 25).

Section 3212(a) requires joinder of issue before summary judgment, unless a court converts a motion to dismiss after giving notice under CPLR 3211(c).

Four Seasons Hotels Ltd. v. Vinnik · filed 1987-04-28(a)

Special Term erred not because summary judgment is unavailable to a pleader prior to joinder of issue, but because summary judgment is unavailable to either side prior to joinder of issue absent CPLR 3211 (c) notice.

Section 3212(a) requires issue to be joined before a party moves for summary judgment.

Peterson v. State · filed 1987-05-07(a)

Since the State was required to serve an answer in this case, and since it made its motion for summary judgment before serving an answer, the motion was premature and should have been denied.

Section 3212(a) requires issue to be joined before summary judgment may impose personal liability on a respondent.

People v. American Motor Club, Inc. · filed 1987-10-29(a)

The simultaneous imposition of sanctions against Neu personally, however,. violated proper statutory procedure (see, CPLR 3212 [a]) and deprived him of due process. Issue had never been joined.

Section 3212(f) allows flexibility in the proof needed to oppose summary judgment when discovery may reveal a triable issue.

Michaelis v. State · filed 1987-12-23(f)

The law recognizes some flexibility in the quantum of proof necessary to defeat a motion for summary judgment (CPLR 3212 [f]; see, Zuckerman v City of New York, 49 NY2d 557, 562). In our view, summary judgment is not warranted in this case until after discovery is conducted to determine whether any triable issues exist.

CPLR 3212(a) permits a motion for summary judgment only after issue has been joined.

Fineberg v. Fineberg · filed 1988-01-29(a)

Special Term erred in granting defendant’s motion for summary judgment because issue had not been joined (CPLR 3212 [a]; Woodworth v Woodworth, 135 AD2d 1143; Republic Natl. Bank v Luis Winston, Inc., 107 AD2d 581, 582; Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723, 724; cf., Duell v Hancock, 83 AD2d 762, 763).

Section 3212(a) does not permit summary judgment before issue has been joined.

Westchester Express, Inc. v. State Insurance Fund · filed 1989-09-12(a)

As a matter of practice summary judgment under CPLR 3212 (a) would not lie, because issue had not been joined on the counterclaim, properly treated by the court as a complaint (Edelman v Edelman, 88 Misc 2d 156, 159).

Section 3212(a) permits a summary judgment motion only after issue has been joined; a motion aimed at an unpleaded claim is premature.

Moscato v. City of New York · filed 1992-05-21(a)

To accept the premise that Thomason could obtain dismissal of a "purported” cross claim, not asserted in a pleading, would be contrary to the requirement that a party may move for summary judgment only "after issue has been joined” (CPLR 3212 [a]).

CPLR 3212 (a) permits a summary judgment motion once issue has been joined.

Nikezic v. Balaz · filed 1992-06-22(a)

That being the case, we find that issue had been joined in the present action, in satisfaction of the requirements of CPLR 3212 (a), and the defendants’ cross motion for summary judgment was proper, as was the court’s ruling thereon.

Section 3212(a) permits a motion for summary judgment only after issue has been joined.

Osinowo v. Comptroller · filed 1995-04-06(a)

At best, the papers indicate service of summonses with notice and notices of claim, the latter being mistakenly taken by plaintiff as a complaint. Obviously, issue has not been joined in either action (CPLR 3212 [a]).

Section 3212(a) permits a summary judgment motion after issue has been joined, and courts strictly enforce that requirement.

Shah v. Shah · filed 1995-05-23(a)

The trial court also correctly treated the motion and cross-motion as motions for summary judgment. CPLR 3212 (a) provides that a motion for summary judgment may be made "after issue has been joined.”

Section 3212(a) requires denial of a summary judgment motion made before joinder of issue as premature.

Cox v. J.D. Realty Associates · filed 1995-12-19(a)

In any event, Weintraub is an anomaly that we subsequently disapproved and limited to its facts, holding that a motion for summary judgment prior to joinder of issue is premature and should be denied (Valentine Tr. v Kernizan, 191 AD2d 159, 161; see, City of Rochester v Chiarella, 65 NY2d 92, 101 [rule barring prejoinder motion for summary judgment strictly applied]).

Section 3212(a) bars summary judgment before issue has been joined.

Model v. Elliman · filed 1997-06-26(a)

However, the grant of summary judgment to plaintiff David Elliman on the fourth cause of action alleged in the second amended complaint was premature, as issue had not yet been joined (CPLR 3212 [a]), and there are issues of fact outstanding as to whether or not the attempted reconstitution and transfer of assets had been completed.

Section 3212(a) permits a party to move for summary judgment after issue has been joined; the court considered motions made before an answer was served after both sides submitted written consent waiving notice under CPLR 3211.

Christ v. Brontman · filed 1997-12-29(a)

“Any party may move for summary judgment in any action, after issue has been joined”. (CPLR 3212 [a].) In the instant case the defendants and the plaintiffs have both submitted motions seeking summary judgment. However, issue has not been joined in this case as no answer has been served. Counsel for both parties submitted consent in writing waiving notice by the court of treatment of the motion for summary judgment pursuant to CPLR 3211. Therefore, this court will consider the motions for summary judgment.

Section 3212(a) requires issue to be joined before a party moves for summary judgment.

Pharmhealth Infusion, Inc. v. Rohm Services Corp. · filed 1998-04-29(a)

Additionally, the court properly denied plaintiffs cross motion for partial summary judgment as premature because issue was not yet joined (see, CPLR 3212 [a]).

Section 3212(a) makes summary judgment premature before issue is joined.

Miller v. Schreyer · filed 1999-01-05(a)

No answer is contained in the record and, pursuant to CPLR 3212 (a), summary judgment is premature prior to joinder of issue (City of Rochester v Chiarella, 65 NY2d 92, 101; Moscato v City of New York [Parks Dept.], 183 AD2d 599, 601; Republic Natl. Bank v Luis Winston, Inc., 107 AD2d 581, 582).

A motion for summary judgment may not be made before joinder of issue.

Henbest & Morrisey, Inc. v. W. H. Insurance Agency · filed 1999-03-04(a)

Although not raised as an issue in either of the parties’ briefs, it is fundamental law that a motion for summary judgment may not be made prior to joinder of issue (CPLR 3212 [a]).

CPLR 3212(a) does not permit factual issues to be decided on summary judgment before joinder of issue.

Bernstein v. Crowne Princess Club · filed 1999-12-28(a)

Whether appellants’ presence at the hotel through the counter was such as to make them aware of the danger, and whether the danger was such as not to be readily discoverable by plaintiff, are issues of fact that cannot be addressed before joinder of issue (CPLR 3212 [a]).

Section 3212(a) requires issue to be joined before summary judgment may be sought on a claim.

Valerio v. City of New York · filed 2000-08-28(a)

Because the City has not yet interposed an answer to this claim (see CPLR 3212 [a]; Kantor v Bernstein, 225 AD2d 500, 502), the court must deem all allegations pleaded to be true and accord plaintiff every favorable inference (344 E. 72 Ltd. Partnership v Dragatt, 188 AD2d 324).

Section 3212(a) requires issue to be joined before a party may obtain summary judgment.

C.S. Behler, Inc. v. Daly & Zilch, Inc. · filed 2000-11-13(a)

We note that the court properly denied plaintiff’s motion with respect to Daly because Daly had not yet served an answer and thus issue had not been joined (see, CPLR 3212 [a]).

Section 3212(a) bars a motion for summary judgment before issue has been joined.

Ronald Shapss Corporate Services, Inc. v. Fidelity Holdings, Inc. · filed 2001-03-19(a)

We affirm on the alternative ground, raised by Fidelity, that the cross motion was premature since issue had not been joined (see, CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Chakir v Dime Sav. Bank, 234 AD2d 577; Fargo v Watertown Educ. Assn., 175 AD2d 633).

Section 3212(a) requires issue to be joined before a party moves for summary judgment.

Historic Albany Foundation v. Breslin · filed 2001-04-26(a)

Although not raised by any party on appeal, we note that issue was never joined in this action and plaintiff’s motion for summary judgment should have been dismissed as premature (see, CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Henbest & Morrisey v W. H. Ins. Agency, 259 AD2d 829; Miller v Schreyer, 257 AD2d 358, 361).

Section 3212 summary judgment is premature when issue has not been joined and the parties have not received notice that a motion to dismiss will be converted to one for summary judgment.

Lockheed Martin Corp. v. Aatlas Commerce, Inc. · filed 2001-05-17

Initially, we find that Supreme Court erred in deciding defendants’ motions pursuant to CPLR 3212 given that issue was not joined and notice of conversion of the motions was not given to the parties by the court pursuant to CPLR 3211 (c).

Section 3212 does not govern a motion made before joinder of issue that tests only the facial sufficiency of the complaint.

207 Second Avenue Realty Corp. v. Salzman & Salzman · filed 2002-02-07

—Judgment, Supreme Court, New York County (Jane Solomon, J.), entered November 30, 2000, dismissing the complaint, unanimously modified, on the facts, to delete any references therein to CPLR 3212 and summary judgment, to insert therein a recital that the complaint is dismissed pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, and otherwise affirmed; judgment, same court and Justice, entered on or about August 23, 2001, awarding defendants sanctions of $500 for plaintiffs’ frivolous conduct, unanimously affirmed; appeal from order, same court and Justice, entered March 30, 2001, which denied plaintiffs’ motion to reargue the dismissal of the complaint, and, upon finding such motion to be frivolous, granted defendants’ cross motion for sanctions to the extent of awarding $500, unanimously dismissed; all of the above with one bill of costs payable by plaintiffs to defendants.

A cross motion for summary judgment is premature before joinder of issue.

Costalas v. Amalfitano · filed 2003-05-13

Plaintiffs cross motion for summary judgment was premature prior to joinder of issue (see CPLR 3212; Kantor v Bernstein, 225 AD2d 500, 502 [1996]).

Section 3212(a) bars summary judgment before issue is joined.

St. Paul Fire & Marine Insurance v. York Claims Service, Inc. · filed 2003-09-11(a)

Summary judgment may not be granted before issue is joined (see CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]).

Section 3212(a) requires issue to be joined before a court grants summary judgment.

Lutine Realty Corp. v. Perry Films, Inc. · filed 2004-03-23(a)

Plaintiff's motion for summary judgment is denied as issue has not been joined pursuant to CPLR 3212 (a) and this court has not invoked CPLR 3211 (c).

Section 3212(a) makes a summary judgment motion premature before issue has been joined.

Wfr Assocs. v. Mem. Hosp. · filed 2004-04-18(a)

Inasmuch as issue has not been joined in this matter, the court must dismiss the motion as premature ( see , CPLR 3212 [a]; Historic Albany Found. v Breslin , 282 AD2d 981, 983 [2001]).

CPLR 3212(a) bars a summary judgment motion before issue is joined, and courts strictly enforce that requirement.

Sonny Boy Realty, Inc. v. City of New York · filed 2004-06-24(a)

Plaintiff’s motion for summary judgment, which preceded joinder of issue, was properly denied. “A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]; St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d 347 [2003]).

Section 3212(a) does not permit summary judgment before issue has been joined.

Union Turnpike Associates, LLC v. Getty Realty Corp. · filed 2006-03-28(a)

Since there is no indication in the record that issue had yet been joined, the Supreme Court was powerless to grant summary judgment on the complaint prior to joinder of issue (see CPLR 3212 [a]; ...).

Section 3212(a) requires issue to be joined before a party may move for summary judgment.

Coolidge Equities Ltd. v. Falls Court Properties Co. · filed 2007-11-09(a)

It is undisputed that defendant did not file or serve an answer in this action, and thus issue was never joined. Defendant’s preanswer cross motion was therefore premature and should have been denied.

CPLR 3212(a) permits a party to move for summary judgment only after issue has been joined.

White House Manor, Ltd. v. Benjamin · filed 2008-11-20(a)

The mandates of CPLR 3212 were not satisfied in this case, and Supreme Court’s order was thus not a proper award of summary judgment pursuant to article 32 of the CPLR. CPLR 3212 (a), titled “Time; kind of action,” states that “Any party may move for summary judgment in any action, after issue has been joined.”

Section 3212(a) bars a motion for summary judgment before issue is joined.

Stainless Broadcasting Co. v. Clear Channel Broadcasting Licenses, L.P. · filed 2009-01-15(a)

In the event that the court treated defendant’s motion as one for summary judgment, we find this to be error. A motion for summary judgment may not be made prior to joinder of issue (see CPLR 3212 [a]) and, although a motion to dismiss pursuant to CPLR 3211 may be converted to a summary judgment motion by the court after giving the parties adequate notice (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas Commerce, Inc., 283 AD2d 801, 802 [2001]), the record discloses no such notice by the court.

Section 3212(a) requires issue to be joined before summary judgment may be granted; one defendant’s answer does not permit summary judgment against defendants who have not answered.

Perla v. Real Property Holdings, LLC · filed 2009-01-16(a)

With respect to the defaulting defendants, summary judgment is improper since CPLR 3212 (a) does not contemplate that, if one of a number of defendants answers, summary judgment may be had against all (see Nichols v Haehn, 8 AD2d 405, 413 [1959]).

Section 3212(a) generally requires issue to be joined before a summary judgment motion, but a court may consider an earlier motion when the parties treat issue as joined.

Roche v. Claverack Cooperative Insurance · filed 2009-02-26(a)

While a motion for summary judgment is not authorized by statute until issue has been joined (see CPLR 3212 [a]; Berle v Buckley, 57 AD3d 1276, 1277 [2008]), the court could consider the motion because “the parties charted their own procedural course and treated defendants’ summary judgment motion as if issue had indeed been joined” (Ryan v Bettiol, 211 AD2d 844, 845 [1995]; see Kline v Town of Guilderland, 289 AD2d 741, 741 n [2001]; cf. Yule v New York Chiropractic Coll., 43 AD3d 540, 541-542 [2007]).

CPLR 3212(a) does not permit summary judgment before issue has been joined, even when the request for final relief is made as part of another motion.

Alexandru v. Pappas · filed 2009-12-01(a)

However, to the extent that the plaintiffs motion sought to compel the defendants to specifically perform their obligations under the stipulations of settlement, which is the ultimate relief sought in the action, that branch of the motion was, in effect, for summary judgment, which procedurally could not be granted, as issue had yet to be joined (see CPLR 3212 [a]).

Section 3212(a) requires an issue to be joined before a party may move for summary judgment.

Ryan, Inc. v. New York State Department of Taxation & Finance · filed 2009-11-12(a)

The court notes that the issue of constitutionality need not be discussed at this time since, as no issue has been joined pursuant to CPLR 3212 (a), plaintiffs cross motion is premature.

Section 3212(f) permits a summary judgment motion to be denied as premature when discovery has not yet taken place, without reaching the merits.

Gonzalez v. Nutech Auto Sales · filed 2010-01-19(f)

Under the circumstances of this case, since the motion was premature as no discovery had yet taken place (see CPLR 3212 [f]; Harvey v Nealis, 61 AD3d 935 [2009]; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753 [2008]), the Supreme Court erred in determining the motion on the merits.

CPLR 3212(a) bars a motion for summary judgment before issue is joined.

115-41 St. Albans Holding Corp. v. Estate of Harrison · filed 2010-03-02(a)

Consequently, issue was not joined, and the plaintiff was barred from seeking summary judgment (see CPLR 3212 [a]; Alexandru v Pappas, 68 AD3d 690, 691 [2009]; Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727 [2006]).

Section 3212(a) bars a motion for summary judgment before issue is joined.

Estate of Jason v. Herdman · filed 2010-02-11(a)

We deem the order to show cause as constituting a motion for summary judgment, and we conclude that Supreme Court properly denied the motion. “ ‘A motion for summary judgment may not be made before issue is joined . . .[,] and [the courts have] strictly adhered to [that requirement]’ ”

CPLR 3212(a) permits a summary judgment motion only after issue has been joined, which requires a complaint and an answer or counterclaim.

Shaibani v. Soraya · filed 2010-03-30(a)

Under these circumstances, the Supreme Court erred in considering the merits of the motion and cross motion, in effect, for summary judgment, since issue had not yet been joined as required by CPLR 3212 (see CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]; Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727 [2006]).

CPLR 3212(a) makes a summary judgment motion on a cross claim premature until issue has been joined on that claim.

HERKIMER COUNTY INDUSTRIAL DEVELOPM v. VILLAGE OF HERKIMER · filed 2011-05-06(a)

The court, however, properly denied that part of the motion for summary judgment on the third cross claim inasmuch as issue on that cross claim has not been joined and thus that part of the motion is premature (see CPLR 3212 [a]).

CPLR 3212(a) requires issue to be joined before a court may grant summary judgment.

CB RICHARD ELLIS-BUFFALO, LLC v. KUNVARJI HOTELS, INC. · filed 2012-04-20(a)

The court properly denied plaintiff’s cross motion on the further ... ground that issue had not been joined (see CPLR 3212 [a]; Matter of Estate of Jason v Herdman, 70 AD3d 1382).

A cross motion for summary judgment may be denied as premature under section 3212(a).

PRESTIGIACOMO, ANDREW v. AMES, JUNE N. · filed 2013-11-15(a)

Plaintiff’s cross motion for summary judgment seeking a ruling that the easement is, inter alia, “no longer legally valid” was premature (see CPLR 3212 [a]) and, ... in any event, lacked merit.

Section 3212(a) does not permit summary judgment against a defendant before issue has been joined as to that defendant.

Pantovic v. YL Realty, Inc. · filed 2014-05-15(a)

Although the court erred in sua sponte dismissing plaintiffs complaint against YL Realty, since issue had not yet been joined as to that defendant (CPLR 3212 [a]; see Pilatich v Town of New Baltimore, 100 AD3d 1248, 1249 [3d Dept 2012]), upon a search of the record, we dismiss the complaint against YL Realty pursuant to CPLR 3215 (c) on the ground that it has been abandoned.

CPLR 3212(a) requires issue to be joined before summary judgment may be granted against a party.

Jennings v. Chase Home Finance, LLC · filed 2014-10-14(a)

Hence, issue has not been joined, and the motion for summary judgment as against her must be denied (CPLR 3212 [a]; Republic Natl. Bank of N.Y. v Luis Winston, Inc., 107 AD2d 581, 582 [1st Dept 1985]).

Section 3212(a) bars a motion for summary judgment before issue is joined.

Lindbergh v. SHLO 54, LLC · filed 2015-05-06(a)

Accordingly, the Supreme Court should have denied the plaintiffs motion for summary judgment, since it was made before issue was joined (see CPLR 3212 [a]; Gaskin v Harris, 98 AD3d 941, 942 [2012]; Shaibani v Soraya, 71 AD3d 1121 [2010]; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d 653 [2010]; Alexandru v Pappas, 68 AD3d 690, 691 [2009]).

Section 3212(a) permits summary judgment only after issue has been joined.

Schwartz v. Torrenzano · filed 2015-08-07(a)

The remedy of summary judgment is available only after the joinder of issue (see CPLR 3212 [a]).

CPLR 3212(a) permits a motion for summary judgment only after joinder of issue.

American Transit Insurance Co. v. Baucage · filed 2017-01-03(a)

Since Innovative Medical never properly filed an answer, it may not ask the court to reach the merits of the action because CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue (see Afco Credit Corp. v Mohr, 156 AD2d 287 [1st Dept 1989]).

CPLR 3212(a) does not permit a motion for summary judgment before the movant has served an answer.

Ferrera v. City of New York · filed 2018-08-22(a)

To the extent the defendants sought to have their motion treated as one for summary judgment, because the defendants moved prior to service of their answer, their motion could not properly be considered as a motion for summary judgment ( see CPLR 3212[a]), and the Supreme Court did not convert it to a motion for summary judgment ( see CPLR 3211[c]).

Section 3212(a) permits a motion for summary judgment only after issue is joined, so a defendant who has not answered cannot obtain summary judgment.

Cremosa Food Co., LLC v. Amella · filed 2018-09-19(a)

A motion for summary judgment may only be made after joinder of issue ( see CPLR 3212[a]). Where, as here, it is conceded that the defendant had not served an answer before moving for summary judgment, issue was not joined and the defendant was precluded from obtaining summary judgment ( see JBBNY, LLC v Begum , 156 AD3d 769; 115-41 St. Albans Holding Corp. v Estate of Harrison , 71 AD3d 653; Alexandru v Pappas , 68 AD3d 690).

CPLR 3212 (a) bars a party from seeking summary judgment before issue is joined by a responsive pleading.

Gerster's Triple E. Towing & Repair, Inc. v. Pishon Trucking, LLC · filed 2018-12-27(a)

Even if defendants are deemed to have appeared by filing a notice of removal of the action to federal court or by other conduct ( see CPLR 320 [a]), they did not file a responsive pleading ( see CPLR 3011) and, consequently, plaintiff was barred from seeking summary judgment ( see CPLR 3212 [a]; JBBNY, Inc. v Begum , 156 AD3d at 770-771; 115-41 St. Albans Holding Corp. v Estate of Harrison , 71 AD3d 653 , 653 [2010]).

CPLR 3212(a) does not permit summary judgment before issue has been joined.

Berman v. TRG Waterfront Lender, LLC · filed 2020-03-18(a)

In ordering Hansen to return the down payment to Berman, the court, in effect, treated Berman's motion as one for summary judgment ( see CPLR 3212; St. Paul Fire & Mar. Ins. Co. v York Claims Serv. , 308 AD2d 347, 349), which was improper, as issue had not been joined ( see CPLR 3212[a]; City of Rochester v Chairella , 65 NY2d 92, 101; St. Paul Fire & Mar. Ins. Co. v York Claims Serv. , 308 AD2d at 349).

CPLR 3212(a) requires issue to be joined before a party may obtain summary judgment.

Bridge v. Cozzy · filed 2020-12-03(a)

Because the amended complaint has yet to be served, issue has not been joined and summary judgment in her favor is inappropriate ( see CPLR 3212 [a]; Gold Medal Packing v Rubin , 6 AD3d 1084, 1085 [2004]).

Section 3212(a) precludes a defendant from moving for summary judgment before serving an answer because issue has not been joined.

OneWest Bank, FSB v. Bernstein · filed 2021-07-14(a)

Where, as here, the defendants have not served an answer before moving for summary judgment, issue has not been joined and the defendants are precluded from seeking summary judgment ( see JBBNY, LLC v Begum , 156 AD3d 769).

Section 3212 permits summary judgment when the moving party makes a prima facie showing and the opposing party fails to demonstrate a triable issue of fact.

Biehl v. Town of Islip · filed 1993-11-29

We find that the Supreme Court properly granted the Town’s motion for summary judgment. The Town made out a prima facie case for summary judgment and the plaintiff has failed to demonstrate the existence of any triable issues of fact (see, CPLR 3212).

Section 3212 permits summary judgment when the case turns on an unambiguous written agreement and notice and the material facts are undisputed.

Solow Management Corp. v. Hochman · filed 1993-03-11

Where, as here, the case turns upon an unambiguous written agreement and notice, and the material facts of the case are not in dispute, summary judgment was properly granted (see, Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460; Tantleff v Truscelli, 110 AD2d 240, 244-245, affd 69 NY2d 769).

Section 3212(b) permits summary judgment when the movant establishes entitlement to judgment and no factual issue requires a trial.

Paone v. Westwood Village · filed 1991-12-16(b)

We find that both Colonial and High Tech properly established their entitlement to summary judgment, and that there are no factual issues requiring a trial (see, CPLR 3212 [b]).

Under CPLR 3212(b), a party seeking summary judgment must show entitlement to judgment as a matter of law.

Fitzsimmons v. Aley · filed 1991-06-07(b)

We thus conclude that plaintiff failed to show his entitlement to judgment as a matter of law on his first cause of action (see, CPLR 3212 [b]).

Section 3212(c) permits an immediate hearing on specific issues; otherwise, a court cannot resolve factual disputes on a summary judgment motion.

Schwartz, Karlan & Gutstein v. 271 Venture · filed 1991-04-09(c)

Except for the direction of an immediate hearing on certain specific issues (see, CPLR 3212 [c]), not here applicable, a court may not resolve factual issues on a motion for summary judgment.

Section 3212 does not permit summary judgment when a material issue of fact must be decided at trial.

Safier v. Kassler · filed 1986-11-26

Plaintiff’s allegations and the evidence demonstrate that a material issue of fact must be determined in this action by a trier of fact, i.e., whether the parties’ minds had met on the terms of sale.

Section 3212(b) requires denial of summary judgment when material issues of fact remain.

Winslow v. Norstar Bank · filed 1987-02-17(b)

Although the documentary evidence submitted by the plaintiff established that the defendant provided him with erroneous information regarding the value of his Mariah Oil & Gas Corp. stock on three quarterly statements, there are material issues of fact presented as to whether the plaintiff justifiably relied upon this information, and whether the defendant acted in good faith in providing this information. Therefore, summary judgment was properly denied to both parties (see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

CPLR 3212 does not permit summary judgment when a triable question of fact remains.

Gray v. Sandoz Pharmaceuticals · filed 1986-10-27

In this case, there is a triable question of fact as to whether Dr. Woodrow’s prior negligence made likely the injuries suffered as a result of Dr. Carey’s negligence. Consequently, for this reason, it was also inappropriate to grant the motion for summary judgment (see, Phillips v Kantor & Co., 31 NY2d 307, 311).

Section 3212 does not permit summary judgment for either side when material factual issues remain.

Tepperman v. New York City Transit Authority · filed 1986-10-30

NYCTA’s CPLR 3212 motion is denied, nor is summary judgment in favor of plaintiff warranted for existing material trial issues of fact.

CPLR 3212(b) requires denial of summary judgment when triable issues remain concerning liability or the amount of damages.

Spence v. Curry · filed 1987-01-20(b)

Inasmuch as the defendant’s denial of the plaintiff’s allegation concerning damages for breach of contract and the defendant’s affidavits raise triable issues bearing on the defendant’s liability for damages, as well as on the amount of damages, the plaintiff’s cross motion for summary judgment on his second cause of action was properly denied (see, CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when the record presents issues of fact requiring a trial.

Dugan v. County of Rensselaer · filed 1986-05-06(b)

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and defendant’s motion for summary judgment denied because the record presents issues of fact requiring a trial (CPLR 3212 [b]).

CPLR 3212(b) does not permit summary judgment for any party when triable issues of fact remain.

Farmers Production Credit Ass'n v. Taub · filed 1986-06-30(b)

We conclude that the existence of triable issues of fact in this case precludes the ... granting of summary judgment to any party, and therefore reverse.

Section 3212(b) requires denial of summary judgment when a party shows facts sufficient to require a trial of an issue of fact.

Reznikoff v. Compton · filed 1986-07-03(b)

It is clear that "the motion [for summary judgment] shall be denied if any party shall show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]). Such circumstances prevail here.

Section 3212 requires denial of summary judgment when the parties’ affidavits raise questions of fact about the claim.

Brisimitzakis v. A. B. Machine Works, Inc. · filed 1986-03-03

In addition, the affidavits submitted by the parties raise questions of fact with respect to the petitioner’s cause of action, pursuant to Business Corporation Law § 1104-a, thereby warranting denial of summary judgment in favor of the appellant (see, Matter of Mintz [Astoria Holding Corp.], 113 AD2d 803).

Partial summary judgment on liability is unavailable when factual questions remain about negligence and comparative negligence.

Perlmutter v. Zaret · filed 1986-06-02

We agree with Special Term’s determination that questions of fact exist concerning the defendants’ negligence and the degrees of comparative negligence, if any, between the parties (cf. Rios v Nicoletta, 119 AD2d 562).

Section 3212 permits summary judgment when the moving party shows that no issue of fact requires a trial.

Overton v. Department of Correctional Services · filed 1986-02-27

The court finds that the plaintiff has satisfied his burden of demonstrating that there are no issues of fact which require a trial. The defendant has not provided the court with any evidence to the contrary. Accordingly, the plaintiff’s motion for summary judgment is granted to the extent that the defendant shall refrain from cutting the plaintiffs hair.

Section 3212 permits summary judgment on a claim when no triable issue of fact remains.

Levy Wolf Real Estate Brokerage, Inc. v. Lizza Industries, Inc. · filed 1986-03-17

No triable issue of fact thus exists as to whether the plaintiff was the procuring cause of the lease, and summary judgment was properly granted with respect to the plaintiff’s first two causes of action (see, Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Section 3212(b) permits summary judgment when the opposing party raises no triable issue of fact.

Jacket House, Inc. v. Bank Leumi Trust Co. · filed 1986-04-08(b)

No issue of fact is raised to support plaintiffs’ argument that the June 2nd arrangement covering the accounts receivable constituted a novation or that it was otherwise not liable to the Bank for its debts.

CPLR 3212 permits summary judgment when no genuine issue of fact precludes judgment.

Siegel v. Cherry · filed 1986-05-27(c)

— Order, Supreme Court, New York County (Baer, J.) entered September 4, 1985, modified, on the law, the motion of defendants Lita Hazen and Morgan Guaranty Trust Company for summary judgment granted, summary judgment granted to defendant Alison Cherry pursuant to CPLR 3212 (c), and, as so modified, otherwise affirmed, with costs. ... Our search of the record reveals that there are no genuine issues of fact as to the interpretation of the trust instruments at issue which would preclude summary judgment in favor of the defendants.

CPLR 3212 summary judgment is denied when the papers raise a triable issue about whether the defendant created the alleged hazard.

Kanopka v. Village of Freeport · filed 1986-06-30

Upon a review of the papers, including the verified complaint, which alleges that the defendant performed roadwork in the area, and the photographs annexed to the affirmation of the plaintiffs’ attorney in opposition, we conclude that Special Term correctly determined that there is a triable issue with regard to whether the defendant created the pothole which is alleged to be the cause of the plaintiff’s injury.

Under CPLR 3212(b), summary judgment is properly denied when the supporting papers raise issues of fact.

Fielding v. Hartman · filed 1986-02-03(b)

Special Term properly denied defendant’s motion on the ground that the supporting papers raised issues of fact (CPLR 3212 [b]; see, Behar v Ordover, 92 AD2d 557, 558).

CPLR 3212 does not permit summary judgment when the record presents a triable issue of fact about whether a product was reasonably safe for its intended or reasonably anticipated uses.

Lopez v. Precision Papers, Inc. · filed 1986-03-18

The record presents triable issues of fact concerning whether the forklift, as marketed with an attached but removable overhead safety guard, was "not reasonably safe” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108) for the uses intended or reasonably anticipated by the manufacturer (see, Micallef v Miehle Co., 39 NY2d 376, 385-386).

Section 3212(b) does not permit a court to resolve contested questions of fact on summary judgment.

SHAD Alliance v. Smith Haven Mall · filed 1985-12-19(b)

It should also be noted that whether the Mall was designed and used not merely as a commercial center, but as a social and community center as well, and whether there are meaningful alternatives for free expression, were hotly contested questions of fact, which could not be resolved by summary judgment (CPLR 3212 [b]; Lopez v Senatore , 65 N.Y.2d 1017; Winegrad v New York Univ. Med. Center , 64 N.Y.2d 851).

Section 3212(b) requires denial of summary judgment when triable issues of fact remain.

Clement v. Clement · filed 1985-11-25(b)

Special Term correctly concluded that a number of factual issues exist with respect to the propriety of the disputed confession of judgment, thereby precluding the granting of summary judgment to defendant Cape May Properties.

Under CPLR 3212(b), a party is not entitled to summary judgment when triable issues of fact remain.

Schor v. Montaco Realty Co. · filed 1985-12-02(b)

Triable issues of fact exist, inter alia, as to whether defendants agreed to employ plaintiffs as real estate brokers in this matter, and, if so, what the terms of such agreement were. Thus, defendants are not entitled to summary judgment (see, CPLR 3212 [b]).

Section 3212 permits summary judgment when unsupported allegations fail to raise a triable issue of fact.

Bonghi v. Firstcent Shopping Center, Inc. · filed 1986-01-21

In the situation before us, plaintiffs’ unsupported claim that Modell’s maintained and controlled " 'Modell Plaza’ Shopping Center, including the parking lot where the accident occurred” is simply inadequate to raise a triable issue of fact where all the available evidence demonstrates that Modell’s was under no duty to maintain the parking area.

Section 3212 does not permit partial summary judgment for partition while factual disputes over the parties’ respective interests, rights and shares remain unresolved.

George v. Bridbord · filed 1985-09-23

However, there are unresolved factual issues which render premature the grant of an interlocutory judgment of partition. While it is established that the parties to these appeals are tenants in common to the property, their disagreements as to their respective interests, rights and share in this property remain unresolved.

Summary judgment is properly denied when a factual dispute prevents the court from determining whether an action was timely commenced.

Horwitz v. American Druggists' Insurance · filed 1985-07-08

Since the determinative date on which final payment from the contractor became due to plaintiff cannot be determined from' the record, a factual dispute exists which justified Special Term’s denial of defendant’s motion.

Section 3212 does not permit summary judgment when the evidence presents a factual issue about negligence.

Gatley v. Deters · filed 1985-05-10

There appears to be a sufficient factual issue as to whether Basile may have improperly engaged the wheel locks, particularly in light of his own statement at EBT that he checked the locks and that they appeared to be working. It may be ultimately proven at trial that the responsibility for the accident lies with the general contractor for failing to properly anchor the scaffold. Consequently, summary judgment cannot be granted.

Section 3212 precludes summary judgment on factually disputed issues.

Spring Realty Co. v. New York City Loft Board · filed 1985-03-28

Furthermore, these issues are factually disputed by defendant which precludes summary judgment.

Section 3212 permits summary judgment when no triable issue of fact remains.

Burack v. I. Burack, Inc. · filed 1985-04-08

The petitioner has thus raised no triable issues of fact (CPLR 3212) with respect to the ineffectiveness of the lease as it relates to this summary proceeding.

Section 3212(b) precludes summary judgment when material issues of fact remain unresolved.

Notar Services Corp. v. Dalmazio · filed 1985-04-29(b)

Summary judgment should not have been granted given these unresolved issues of fact (CPLR 3212 [b]).

CPLR 3212(b) makes summary judgment inappropriate when material facts are disputed, including in probate proceedings.

Matter of Pollock · filed 1985-05-02(b)

While summary judgment may be available in probate proceedings (Matter of Pascal, 309 NY 108), that remedy is inappropriate in any case where there are material issues of fact (see, CPLR 3212 [b]).

CPLR 3212(b) requires denial of summary judgment when factual questions require a trial.

Warren v. Arena Associates, Inc. · filed 1985-03-04(b)

Moreover, several questions of fact, including whether Com-mack furnished proper, equipment to plaintiff, require a trial (CPLR 3212 [b]; see, Rotuba Extruders v Ceppos, 46 NY2d 223).

Section 3212 permits summary judgment when the record shows no factual issue supporting liability on a claim.

Manganero v. Grega · filed 1985-02-19

Special Term properly granted the motion for summary judgment against defendant Grega (see, Paul v Ascher, 106 AD2d 619).

Section 3212 requires denial of summary judgment when triable issues remain.

Khan v. Hip Hospital, Inc. · filed 1985-03-28

For these reasons alone, the court finds that there are triable issues cognizable under New York law which preclude summary disposition.

Section 3212(b) requires denial of summary judgment when a triable issue of fact exists.

Soward v. Town of Ramapo · filed 1985-05-06(b)

Since a triable issue of fact exists, summary judgment was properly denied (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; CPLR 3212 [b]).

Section 3212 permits summary judgment declaring the parties’ rights when no material issue of fact is in dispute.

Ryger v. Segal · filed 1985-06-13

No material issue of fact appears to be in dispute and summary judgment declaring the rights of the parties, vis-ávis each other is in order: Plaintiff Risa Ryger and defendant Randy Schneider Segal are cotenants of apartment 4B of 855 West End Avenue in New York County, under the lease dated August 18, 1978, and renewed or extended by instrument dated June 30, 1983.

CPLR 3212(b) requires denial of summary judgment when a genuine issue of triable fact exists.

Massachusetts Higher Education Assistance Corp. v. Bruno · filed 1984-08-09(b)

The question before this court is whether genuine issues of triable fact are present. If indeed there were such an issue, summary judgment would have to be denied pursuant to CPLR 3212 (subd [b]). This however is not the case.

Section 3212(b) requires denial of summary judgment when a party shows facts requiring a trial on an issue other than the amount or extent of damages.

Caccioppo v. United Services Automobile Ass'n · filed 1984-09-05(b)

Under CPLR 3212 (subd [b]), a motion for summary judgment shall be denied if any party shall show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages.

Under CPLR 3212, summary judgment is proper when no material issue of fact precludes it.

Equine Practitioners Ass'n v. New York State Racing & Wagering Board · filed 1984-12-20

As noted, Special Term treated the motion herein as one pursuant to CPLR 3212. The parties also considered the motion as one for summary judgment. Thus, the issue presented is whether a material issue of fact exists which would preclude summary judgment in favor of the defendant Board (see Maybrown v Malverne Distrs., 57 AD2d 548). Special Term erred when it found issues of fact to be present and denied summary judgment.

Section 3212 requires a summary judgment movant to establish entitlement to judgment as a matter of law; a genuine factual dispute over a defense precludes judgment.

Computer Strategies, Inc. v. Commodore Business Machines, Inc. · filed 1984-12-24

It is well established that in order to obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court, as a matter of law, in directing judgment in his favor (CPLR 3212; cf. Zuckerman v City of New York, 49 NY2d 557; Ronder & Ronder v Nationwide Abstract Corp., 99 AD2d 608). On such a motion, the court is not to determine credibility, but whether there exists a factual issue or if arguably there is a genuine issue of fact (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338). Apart from the dubious sufficiency of Commodore’s prima facie claim of default, Computer’s defense of extended credit terms raises a question of fact for the jury. Thus, partial summary judgment was improperly granted.

Section 3212 precludes summary judgment when the truth of an allegedly defamatory statement remains a question of fact.

Martins v. Coelho · filed 1984-07-23

We conclude, therefore, that Bursam failed to establish as a matter of law that on the date of the alleged defamatory utterance, November 7,1981, plaintiff was, in fact, in default in payment of advertising fees to it. The truth or falsity of the utterance remained a question of fact which precluded the granting of summary judgment.

Section 3212 permits summary judgment when the papers show no factual issue and only a question of law remains.

Ostrove v. New York State Teachers Retirement System · filed 1963-12-23

From an examination of the pleadings and all papers submitted on this motion, it appears that there are no factual issues and that only a question of law is raised. ... The defendant’s motion for summary judgment is granted.

Section 3212 permits summary judgment when no material factual issue remains, with damages assessed separately.

R. L. Rothstein Corp. v. Kerr Steamship Co. · filed 1964-07-02

The order should be reversed. Plaintiff is entitled to summary judgment for the value of its security interest in the tallow, as it may be assessed. There are no material issues of fact as to the custom in the tallow trade, since the condition in the mate’s receipt was expressly stipulated.

Section 3212 permits summary judgment when no triable issue of fact remains.

Trager v. United Medical Service, Inc. · filed 1964-09-16(a)

In our opinion there appear to be no triable issues of fact — ... Accordingly, defendants’ motion for summary judgment must he and the same hereby is in all respects granted.

Section 3212 does not permit summary judgment when a factual issue remains about when an insured discovered a loss.

St. Lawrence County National Bank v. American Motorists Insurance · filed 1964-05-06

However, we think that the issue as to whether the losses suffered by the insured were discovered after the date fixed in the policy is in the circumstances one of fact and should not have been resolved against defendant on a motion for summary judgment.

Section 3212(b) requires denial of summary judgment when the record presents factual issues requiring a trial.

King v. Rotterdam Shopping Center, Inc. · filed 1964-06-23(b)

These queries, and there may be others, raise possible issues of fact as to the negligence of the defendants and show ‘1 facts sufficient to require a trial ”. (CPLR 3212, subd. [b].)

Section 3212 does not permit summary judgment when issues of fact remain for trial.

Fleckenstein v. Nehrbas · filed 1964-07-09

The issues of fact which we held precluded the granting of summary judgment to the defendants on the prior appeal in this action (16 A D 2d 811) similarly preclude the granting of the relief now sought by the plaintiff administrator.

Section 3212 does not permit summary judgment when the record presents factual issues that should be resolved at trial.

Storfer v. Fogel · filed 1964-10-05

In a negligence action to recover damages for injury to person and property, plaintiff appeals from an order of the Supreme Court, Queens County, dated May 4, 1964, which denied her motion for summary judgment (CPLR 3212). Order affirmed, without costs. In our opinion, the record presents issues of fact which should be resolved after a trial (Kind v. Barone, 12 A D 2d 625; Hilton v. Feinerman, 11 A D 2d 1027).

Section 3212 requires denial of summary judgment when factual issues must be resolved at trial.

Haeger v. Slote · filed 1964-11-30

Order granting plaintiff’s motion for summary judgment, and judgment entered thereon, reversed, without costs, and motion denied. In our opinion, this record raises issues of fact which should be resolved by a plenary trial.

Section 3212 requires denial of summary judgment when the parties’ agreement presents an issue of fact for trial.

Di Pietro v. Hecker · filed 1964-06-23

It appears that the alleged agreement between the parties with respect to the conditions under which the release was given to defendant by plaintiff must be determined as an issue of fact upon a trial.

Section 3212 requires denial of summary judgment when a triable issue of fact remains.

Anonymous v. Anonymous · filed 1964-09-01

The above-named respondent has moved for summary judgment pursuant to CPLR 3212 asserting that there is no triable issue of fact, that the only question to be resolved is a legal one and the resolution of that question should result in the dismissal of the petition. ... Under section 512 this married petitioner can assert that the respondent is the father of the child. Fie denies the fact. There is a triable issue of fact as to the paternity and the motion is denied.

Section 3212 permits summary judgment when an unambiguous contract can be interpreted without examining disputed background facts.

Barca v. Stein · filed 1964-06-29

Nor can we find substance to plaintiffs’ claim that the existence of factual issues between the parties precludes the granting of summary judgment. The language of the trust agreement is unambiguous and no examination into the background and relationship of the parties is needed for its interpretation.

Section 3212(b) permits a court to strike a defense on summary judgment when only a question of law remains and no facts are disputed.

Ardieta v. Young · filed 1965-01-15(b)

There being only a question of law and no factual dispute the decision of the Special Term should be reversed and the defense of release should be stricken from the answer. (CPLR 3212, isubd. [b].)

Under CPLR 3212, an unsupported counterclaim does not bar partial summary judgment.

Duban v. Platt · filed 1965-03-01

The mere assertion of a counterclaim by the defendant Platt, unsupported by proof that it is meritorious, does not bar appropriate relief to plaintiffs under CPLR 3212 (Nopco Chem. Co. v. Milner, 12 A D 2d 942; Smith v. Crmleigh, Inc., 224 App. Div. 376).