N.Y. C.P.L.R. § 3212

Section 3212(b) permits a court to search the record and grant summary judgment to a party that did not move for it.

Merritt Hill Vineyards, Inc. v. Windy Heights Vineyard, Inc. · filed 1983-05-25(b)

Searching the record (CPLR 3212, subd [b]), we determine that summary judgment should be granted in favor of the defendants dismissing the plaintiff’s second cause of action for damages for breach of contract.

Section 3212(b) requires a medical malpractice plaintiff opposing summary judgment on negligence to offer medical evidence of a departure from accepted practice when the defendant shows compliance with accepted standards.

Pan v. Coburn · filed 1983-06-07(b)

Plaintiffs’ two causes of action are legally distinct, and the absence of rebutting medical evidence demonstrating a departure from accepted medical procedure is fatal to the negligence cause of action.

Section 3212(b) permits a court deciding a summary judgment motion to search the record and grant summary judgment to a party that made no formal cross motion.

Chelsea Marina, Inc. v. Scoralick · filed 1983-06-13(b)

However, a motion for summary judgment searches the record (see CPLR 3212, subd [b]; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.08) and, after due consideration thereof, we are satisfied that defendants are entitled to summary judgment dismissing the complaint.

A party opposing summary judgment must provide evidentiary proof of a genuine triable issue of fact.

Cudney v. BP Oil, Inc. · filed 1983-08-15

Plaintiff’s opposing affidavit failed to present any evidentiary proof demonstrating the existence of a genuine triable issue of fact with regard to defendant’s liability.

CPLR 3212(b) permits a court to grant summary judgment to the opposing party, when appropriate, even without a cross motion.

Maguire v. Puente · filed 1983-09-06(b)

CPLR 3212 (subd [b]), however, empowers the court in a summary judgment motion by one party to grant the relief sought to his adversary without the necessity of a cross motion if such relief is appropriate (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:23).

Section 3212(b) permits a court to grant summary judgment to the party opposing the motion when that party is entitled to judgment.

Brooklyn Hospital v. Axelrod · filed 1983-10-24(b)

Therefore, summary judgment should be granted in favor of defendants pursuant to CPLR 3212 (subd [b]).

Section 3212(b) requires a party opposing summary judgment to present evidence of a material factual issue; an attorney’s affidavit without personal knowledge is insufficient.

Hartford Accident & Indemnity Co. v. Coastal Dry Dock & Repair Corp. · filed 1983-11-17(b)

The only opposition submitted was that of the attorney, who had no personal knowledge. Such an affidavit is patently insufficient.

Section 3212(b) authorizes a court deciding a summary judgment motion to search the record and grant summary judgment against the moving party.

James v. Shave · filed 1983-11-23(b)

Upon a motion for summary judgment, this court is authorized to search the record and award summary judgment against the moving party (CPLR 3212, subd [b]), and we find this case appropriate for the exercise of that authority.

Section 3212(b) permits a court to grant summary judgment to a party opposing a motion for summary judgment.

Coronet Properties Co. v. Jennie & Co. Film Productions, Inc. · filed 1983-11-30(b)

Although respondent’s notice of motion denotes the motion as one to dismiss under CPLR 3211 (subd [a], pars 1, 7), in its postoral argument brief respondent concludes by requesting summary judgment dismissing the petition. Treating the motion as such, respondent’s motion is denied, and pursuant to CPLR 3212 (subd [b]), the court grants summary judgment to petitioner awarding it possession of the premises.

A party opposing summary judgment must present evidentiary proof sufficient to require a trial of a factual issue.

Ace Wire & Cable Co. v. Aetna Casualty & Surety Co. · filed 1983-12-01(b)

To defeat defendant’s motion for summary judgment, plaintiff must come forward with evidentiary proof “sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b]).

CPLR 3212(b) permits a court to grant summary judgment to the opposing party on a cause of action.

Bryam Hills Central School District No. 1 v. State Insurance Fund · filed 1983-12-05(b)

Judgment modified, on the law, by deleting from the first and third decretal paragraphs thereof those provisions which grant summary judgment to the school district on its eighth cause of action, by adding to the second decretal paragraph thereof a provision striking the answer of the defendant State Insurance Fund only as to the school district’s first cause of action, and by adding thereto a provision granting summary judgment to said defendant pursuant to CPLR 3212 (subd [b]) as to the school district’s eighth cause of action and declaring that said defendant is not required to provide a defense to those actions identified in paragraphs 41 through 43 of plaintiffs’ complaint.

Section 3212(b) permits a court to search the record on a summary judgment motion and grant judgment to a party that did not move for it.

Frank v. Liberty Mutual Insurance · filed 1983-12-06(b)

Plaintiff’s motion for summary judgment searches the record (Jewish Kosher Provision Corp. v Gottfried, 63 NYS2d 160), and notwithstanding the absence of a motion by defendant for this relief, it is an appropriate conservation of judicial resources to grant defendant its due. (CPLR 3212, subd [b]; Jelinek v City of New York, 25 AD2d 425; Bolten v Wemett, 3 AD2d 708.)

Section 3212 permits summary judgment for a nonmoving party when no factual issue remains to be decided.

State Farm Insurance v. Trezza · filed 1983-12-09

There being no issues of fact that remain to be determined as to this issue, defendants are entitled to summary judgment declaring State Farm’s duty to defend. (CPLR 3212.)

Section 3212(b) permits a court to grant summary judgment to the nonmoving party when the record warrants it.

Westbury Sleep Products, Inc. v. Paramount Sleep Products, Inc. · filed 1983-12-12(b)

Despite this failure to rebut Paramount’s proof of an excuse of impossibility, Special Term ruled that there was an issue of fact regarding Paramount’s compliance with the settlement order of the bankruptcy court. The order must be modified so as to grant summary judgment in favor of Paramount dismissing the complaint pursuant to CPLR 3212 (subd [b]).

A party opposing summary judgment must show facts requiring a trial.

Payne v. Pavese · filed 1983-12-15

To defeat a motion for summary judgment, the opposing party must show the existence of facts requiring a trial.

An opposing affidavit from a corporate agent who participated in the transaction satisfies subsection (b) when it recounts the relevant facts, and conflicting affidavits that present triable issues of fact preclude summary judgment.

Tahini Investments, Ltd. v. Bobrowsky · filed 1984-01-09(b)

Initially, we note that plaintiff’s affidavit submitted in opposition to defendant’s motion for summary judgment is legally sufficient. The affiant states that she is an agent of plaintiff corporation and that she participated in the negotiations for the purchase of the property. The affidavit recites the facts surrounding the sale and the discovery of the drums. As such, the affidavit meets the requirements of CPLR 3212 (subd [b]). The conflicting affidavits present triable issues of fact precluding the award of summary judgment (CPLR 3212, subd [b]).

CPLR 3212(b) permits the Appellate Division to award summary judgment to a nonmoving party after searching the record, even if that party did not appeal.

Merritt Hill Vineyards Inc. v. Windy Heights Vineyard, Inc. · filed 1984-02-21(b)

CPLR 3212 (subd [b]), provides that “[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” Pursuant to that rule, the Appellate Division properly entered summary judgment in favor of defendants and dismissed plaintiff’s second cause of action.

Section 3212(b) permits summary judgment for a nonmoving party when no factual issues remain to be decided.

Stepping Stones Associates v. City of White Plains · filed 1984-03-26(b)

As there are no issues of fact to be decided, summary judgment is granted to defendant pursuant to CPLR 3212 (subd [b]).

Under CPLR 3212(b), a party opposing summary judgment cannot rely on possible proof at trial without offering proof in evidentiary form or showing that the facts are unavailable.

Albouyeh v. County of Suffolk · filed 1984-05-01(b)

The suggestion that proof may be adduced at trial that the car was in fact on the public highway when Conlon took it is insufficient to meet that burden, it being neither proof in evidentiary form nor a fact unavailable to plaintiffs within the meaning of CPLR 3212 (subd [b]).

CPLR 3212 requires a party opposing summary judgment to present evidence of a triable issue; an unsupported assertion by counsel is insufficient.

Forray v. New York Hospital · filed 1984-05-08

The bald assertion in the affidavit in opposition of one of plaintiff’s attorneys that there is evidence, unspecified, of such responsibility, is insufficient to defeat a motion for summary judgment.

CPLR 3212(b) permits summary judgment for a party other than the movant without a cross-motion when that party is entitled to judgment.

Gottesman & Co. v. International Telephone & Telegraph Corp. · filed 1984-06-28(b)

CPLR 3212 (subd [b]) provides, inter alia, “[i]f it shall appear that any party other than the moving party is entitled to summary judgment, the court may grant such judgment without the necessity of a cross-motion.” Special Term should have granted Gottesman summary judgment upon the facts presented.

Under CPLR 3212(b), a party opposing summary judgment must show facts requiring a trial and ordinarily support them with admissible evidence.

Borchardt v. New York Life Insurance · filed 1984-07-03(b)

We note, at the outset, that Special Term failed to appropriately apply the obverse of the rule in respect to the motion for summary judgment which requires that in order “to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd [b]). Normally, if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form.” (Friends of Animals v Associated Fur Mfrs., supra, p 1067.)

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party even if that party did not appeal.

Spencer, White & Prentis, Inc. v. Southwest Sewer District · filed 1984-07-16(b)

Nevertheless, we have the power to search the record and award summary judgment to a nonmoving party (CPLR 3212, subd [b]) even though the nonmoving party has not appealed (Kornfeld v NRX Technologies, 62 NY2d 686; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 109).

Section 3212(b) permits a court to grant summary judgment to a party who did not move for it when that party is entitled to judgment.

Curry v. Nocket · filed 1984-08-20(b)

Accordingly, in view of defendants’ cross motion for, in effect, summary judgment, Special Term was not precluded from granting summary judgment to plaintiffs even in the absence of a motion by plaintiffs for that relief.

Section 3212(b) permits a court to grant summary judgment to a nonmoving party when that party is entitled to it, without a cross-motion.

Hohenstein v. Hohenstein · filed 1984-11-05(b)

CPLR 3212 (b) provides in pertinent part: “If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” Having resolved the only questions of fact in favor of defendant Walter Hohenstein, the court, pursuant to CPLR 3212 (b) awards summary judgment to defendant Walter Hohenstein.

Section 3212(b) permits a court to search the record and grant summary judgment to a party opposing the motion.

Filby v. Brooks · filed 1984-11-26(b)

We reject these arguments and, as provided in CPLR 3212 (subd [b]), have searched the record before us, and determined that the plaintiff is entitled to summary judgment directing that the barrier be removed from its current location.

Section 3212(b) permits a court to grant summary judgment to a nonmoving party when the record warrants it.

Chautauqua County Sheriff's Employees Ass'n v. Chautauqua Local 807 · filed 1984-12-03(b)

Its motion for summary judgment is denied and summary judgment, pursuant to CPLR 3212 (subd [b]), is granted to the plaintiff against both defendants.

Section 3212(b) permits a court, including an appellate court, to grant summary judgment to a nonmoving party without a cross motion when that party is entitled to judgment.

McIntyre v. Royal Summit Owners, Inc. · filed 1984-12-07(b)

If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross motion (CPLR 3212 [b]). The exercise of this right is not limited to the Court at Special Term, but may take place on the appellate level as well (Howell v Davis, 58 AD2d 852, affd 43 NY2d 874).

CPLR 3212(b) permits a court to grant summary judgment to a nonmoving party without a cross-motion, even if that party has not appealed.

Sasso v. Vachris · filed 1984-12-31(b)

However, we may grant summary judgment to a nonmoving party under CPLR 3212 (subd [b]), which provides in part that “[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion”, even where the nonmovant has not appealed (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112).

Section 3212(b) permits a court to grant summary judgment to a nonmoving party without a cross motion.

38th Astoria Associates v. Chavez · filed 1985-01-07(b)

Pursuant to CPLR 3212 (b), this court grants summary judgment in favor of the respondent tenant without the necessity of a cross motion.

A party opposing summary judgment must offer evidence establishing a factual issue that requires trial.

Fedell v. Wierzbieniec · filed 1985-01-28(b)

Since plaintiff is under an obligation in defending the summary judgment motion to come forward with evidentiary offerings to establish the existence of any factual issue, and has not done so with respect to this issue the court finds that no factual issue with respect to the materiality of the disclosure exists.

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party when appropriate.

Young v. Koch · filed 1985-02-14(b)

A motion for summary judgment, however, invites a court to “search the record” and to award summary judgment to the nonmoving party, where appropriate (CPLR 3212 [b]; Fertico Belgium, S. A. v Phosphate Chems. Export Assn., 100 AD2d 165, 171). Turning now to the record presented to the court by the City, it appears that the nonmovant, Officer Young, is also entitled to summary judgment, limited to the issue of liability, on his first cause of action against the City for attorneys’ fees.

A plaintiff opposing summary judgment on a defamation claim protected by qualified privilege must offer evidence creating a triable issue of actual malice.

Kasachkoff v. City of New York · filed 1985-02-28

The statements being qualifiedly privileged, the burden devolved upon the plaintiff in opposing the motion for summary judgment, to demonstrate a triable issue of fact by proffering evidentiary proof that defendants were motivated by “actual malice” (Stillman v Ford, 22 NY2d 48, 53; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d, at p 61); “ill-will” (Ashcroft v Hammond, 197 NY 488, 495), or “personal spite * * * or culpable recklessness or negligence” (Hoeppner v Dunkirk Print. Co., 254 NY 95, 106). ... In our opinion, plaintiff failed to meet her burden of demonstrating a factual issue with regard to actual malice.

Section 3212(b) permits a court to grant summary judgment to a party who did not make the motion.

Johnson v. Colonial Penn Insurance · filed 1985-03-15(b)

Inasmuch as it is undisputed that plaintiff did replace the damaged building on another site and paragraph 3 (c) (4) contains no requirement that replacement be made on the same site, partial summary judgment is hereby granted to plaintiff pursuant to CPLR 3212 (b), in the amount of $11,914.01.

Section 3212(b) requires a party opposing summary judgment to produce evidence sufficient to raise a genuine issue of fact.

Maddox v. City of New York · filed 1985-04-01(b)

We point out that defendants’ motions were motions for summary judgment and it was incumbent upon Maddox to come forward with evidence that the accident resulted from defendants’ breach of a duty to provide a workplace that was “so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein” (Labor Law § 200 [1]) and not simply from the elements or other risks normally associated with the sport (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557; Great Neck Car Care Center v Artpat Auto Repair Corp., 107 AD2d 658; Gibbons v Hantman, 58 AD2d 108, affd 43 NY2d 941 on opn at App Div). This, plaintiffs failed to do.

Section 3212(f) requires an opposing affidavit to show that facts essential to opposing summary judgment may exist.

GTE Marketing, Inc. v. Colonial Aluminum Sales, Inc. · filed 1985-04-22(f)

Nor does “it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist” (CPLR 3212 [f]; see, e.g., Moxon v Barbour, supra; Citibank v Furlong, 81 AD2d 803, 804).

Section 3212(b) permits summary judgment for a nonmoving party when the record establishes that party’s entitlement to judgment as a matter of law.

Farber v. Stockton · filed 1985-05-15(b)

As the court has pointed out, the affirmative defense of collateral estoppel has not been sufficiently demonstrated to such an extent that would require the court to direct judgment in favor of the defendant. On the contrary, it appears to this court that it has been firmly established that the question of liability rests in favor of the plaintiff and therefore summary judgment in favor of plaintiff is hereby granted' (CPLR 3212 [b]).

Section 3212(b) permits a court to grant summary judgment to the nonmoving party when the record warrants it.

Brown v. Flushing Federal Savings & Loan Ass'n · filed 1985-07-08(b)

Order modified, on the law, by (1) deleting therefrom the words "by reason of the existence of trial [sic] issues of fact” and (2) adding a provision thereto granting summary judgment to defendant (CPLR 3212 [b]).

Section 3212(b) requires a party opposing summary judgment to show facts sufficient to require a trial; speculation about causation does not suffice.

Ascher v. F. Garafolo Electric Co. · filed 1985-09-03(b)

Indeed, if conceivability were all that is necessary to defeat a motion for summary judgment, we would be "obliged, on policy grounds, to ferret out speculative issues 'to get the case to the jury,’ where the trial may disclose something the pretrial proceedings have not” (Andre v Pomeroy, supra, at p 364)—a proposition which the Andre court expressly rejected.

A party opposing summary judgment must support factual claims with specific evidence; conclusory assertions are insufficient.

Greenbaum v. 244 Madison Realty Corp. · filed 1985-09-12

For example, for him to claim permission given by the sponsor, without naming the sponsor and saying what was said when and without supplying an affidavit from his informant, is grossly inadequate, for, after all, he is confronted by a motion for summary judgment.

Section 3212(b) requires a party opposing summary judgment to present facts in evidentiary form that raise a triable issue of fact.

First Family Mortgage Corp. v. Lubliner · filed 1985-09-23(b)

In order to successfully oppose a motion for summary judgment, a party must set forth facts in evidentiary form raising a triable issue of fact (CPLR 3212 [b]; Albouyeh v County of Suffolk, 96 AD2d 543, affd 62 NY2d 681).

Section 3212 permits a court to grant partial summary judgment on liability to the party opposing a summary judgment motion, leaving damages for trial.

County of Broome v. State · filed 1985-10-01(b), (c)

It appears, however, that the claimants are entitled to summary judgment (see, CPLR 3212 [b], [c]) on the issue of the State’s liability with respect to their claim for legal fees incurred in defense of the two ejectment suits and that there only remains to be determined the amount of damages.

A party opposing summary judgment on a cross claim must present facts sufficient to warrant a trial.

Ballestas v. City of New York · filed 1985-11-12(b)

Respondent, to substantiate its cross claim, has failed to present facts sufficient to warrant a trial to determine the status of Diamond as it relates to control of the building. The causes of action and cross claims as against Diamond are without merit and are therefore dismissed. (CPLR 3212 [b].)

Section 3212(b) allows a court to grant summary judgment to a nonmoving party without a cross-motion when that party is entitled to judgment.

Field v. Field · filed 1985-11-12(b)

In determining this motion, CPLR 3212 (b) must be borne in mind. Said section provides in part that "If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” As has often been stated, a motion for summary judgment searches the record so that a nonmovant may be granted summary judgment (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:23, p 443). It is clear that this is a case in which the party entitled to summary judgment is the nonmovant plaintiff.

A party opposing summary judgment must lay bare proof showing the validity of its claims.

De Boer v. Lloyd's Shopping Center, Inc. · filed 1985-12-23

As it was plaintiffs responsibility in opposing this motion for summary judgment to lay bare his proof and show validity to his claims, which he did not do, this motion must be granted and the complaint dismissed.

Under CPLR 3212(b), a medical expert’s affidavit setting forth sufficient facts about an alleged departure from accepted medical practice can overcome a motion for summary judgment.

Banny v. Griepp · filed 1986-01-13(b)

The affidavit of plaintiffs’ medical expert submitted in to the motion sets forth sufficient facts regarding alleged departure from accepted standards of medical practice to overcome the motion for summary judgment (CPLR 3212 [b]; cf. Wind v Cacho, 111 AD2d 808).

To defeat summary judgment under CPLR 3212, the opposing party must present evidence establishing a genuine triable issue of fact.

Hamilton v. Hertz Corp. · filed 1986-01-24

It is well settled that, to defeat a motion for summary judgment, a party must lay bare his facts and present sufficient evidentiary proof to establish a genuine triable issue of fact (Smith v Johnson Prods. Co., 95 AD2d 675 [1st Dept 1983]).

Subdivision (b) requires a party opposing summary judgment to present facts sufficient to raise an issue for trial.

Amsler v. Verrilli · filed 1986-04-28(b)

In opposing a motion for summary judgment, the plaintiffs were required to lay bare their proof ... and to "show facts sufficient to require a trial of any issue of fact” ... .

CPLR 3212(b) allows a court to search the record and award summary judgment to a nonmoving party, even if that party did not appeal.

Stanford Heights Fire District v. Town of Niskayuna · filed 1986-05-22(b)

Although we recognize that the town did not appeal the denial of its cross motion, this court, upon searching the record on plaintiff’s appeal from the denial ... of its summary judgment motion, is authorized to award summary judgment to a nonmoving party even in the absence of an appeal by that party (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112).

Evidence offered to defeat a summary judgment motion must be in evidentiary form.

Abrams v. Love Canal Area Revitalization Agency · filed 1986-05-27

Furthermore, in light of the existence of certain evidence propounded by plaintiff and uncontroverted by anything in evidentiary form so as to defeat a summary judgment motion, specifically the contamination of creekbeds and the opinion of Dr. Axelrod, as chief health officer of the State, LCARA’s answer of "no” to the questions set forth above was arbitrary and capricious.

CPLR 3212 requires a party opposing summary judgment to present evidentiary facts showing a question for trial or an excuse for failing to do so.

Wood v. Nourse · filed 1986-11-10

There being no proof in evidentiary form that Oatka provided or placed the lumber, and there being no proffered excuse by plaintiff to explain his failure to meet the strict requirements of proof under CPLR 3212, no question of fact was created which would require trial (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

Section 3212(b) requires a party opposing summary judgment to offer admissible proof that raises a triable issue of fact.

Jacobs v. Schleicher · filed 1986-11-24(b)

The unsworn statement of the alleged eyewitness obtained nearly two years after the accident does not constitute evidentiary proof in admissible form sufficient to raise a triable issue of fact and overcome a motion for summary judgment (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) permits a court to search the record and grant summary judgment to a party who did not move for it.

Tobet v. New York City Transit Authority · filed 1987-02-26(b)

However, CPLR 3212 (b) admonishes the court not to limit itself to the relief sought and to search the record. I do so and grant the claimant summary judgment on the issue of liability and set this matter down for an assessment of damages to determine the exact amount of restitution that shall be awarded to the claimant.

A summary judgment motion searches the record, and the court may grant summary judgment to a nonmoving party.

Sky Four Realty Co. v. C.F.M. Enterprises, Inc. · filed 1987-03-26(b)

While defendant did not move for summary judgment, plaintiff’s motion searches the record (CPLR 3212 [b]), and we choose to exercise our discretion and grant relief to a nonmoving party (see, Howell v Davis, 58 AD2d 852, 853, affd 43 NY2d 874).

Section 3212(b) permits summary judgment for a nonappealing party when no material fact is disputed and that party is entitled to judgment as a matter of law.

Van Orman v. Slade · filed 1987-04-02(b)

While we recognize that defendants did not appeal from that part of Special Term’s order which denied defendants’ motion to dismiss the fourth cause of action and granted partial summary judgment to plaintiffs on their fourth cause of action, we, nevertheless, choose to exercise our power to grant summary judgment to a nonappealing party since no material issue of fact exists and defendants are entitled to judgment as a matter of law (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112).

Section 3212(b) permits a court to grant summary judgment to the nonmoving party.

Doctors Hospital v. Curtis · filed 1987-04-06(b)

Accordingly, plaintiff’s motion is denied and, under the authority of CPLR 3212 (b), defendant Amanda Curtis shall have summary judgment dismissing plaintiff’s complaint.

CPLR 3212(b) requires a party opposing summary judgment to produce admissible evidence showing a factual issue that requires trial; conclusory assertions are insufficient.

Mascoli v. Mascoli · filed 1987-04-27(b)

It is well settled that in order to defeat a motion for summary judgment, the opposing party must "show facts sufficient to require a trial of any issue of fact” (see, CPLR 3212 [b]), and that showing must be made by producing evidentiary proof in admissible form (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

Section 3212(b) permits a court to grant summary judgment to the opposing party.

Solomon v. Barth · filed 1987-05-01(b)

In view of the court’s holding and pursuant to the authority in CPLR 3212 (b) the court instead grants defendant summary judgment dismissing plaintiff’s complaint.

Section 3212(b) allows a court to search the record and award summary judgment to a nonmoving party, including on appeal.

Vecchio v. Lack · filed 1987-06-01(b)

Although the defendants never cross-moved for summary judgment, they may raise on appeal Special Term’s failure to grant them that relief because both Special Term and this court have the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a nonmoving party (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Maddox v City of New York, 108 AD2d 42, affd 66 NY2d 270).

Section 3212(b) permits a court to award summary judgment to a party that did not cross-move when the record warrants it.

Quirin v. 123 Apartments Corp. · filed 1987-03-03(b)

This court, however, finds that defendant is entitled to summary judgment dismissing the complaint notwithstanding its failure to cross-move for such relief (CPLR 3212 [b]).

Section 3212 does not permit summary judgment before an answer has been served.

Martin A. v. Gross · filed 1987-04-27(a)

The city’s motions for summary judgment pursuant to CPLR 3212 are denied as premature because answers have not yet been served.

Section 3212(b) permits a court to search the record and grant summary judgment to a party that did not cross-move.

Quirin v. 123 Apartment Corp. · filed 1987-06-11(b)

On a motion for summary judgment, the court may search the record and, if warranted, grant summary relief even in the absence of a cross motion (Wehringer v Helmsley-Spear, Inc., 91 AD2d 585, affd 59 NY2d 688).

Section 3212(b) permits summary judgment dismissing a complaint against all defendants when the plaintiff fails to raise a factual issue on damages.

Homemakers Inc. of Long Island v. Williams · filed 1987-06-15(b)

In light of the foregoing, we conclude that the court properly dismissed the complaint as to all of the defendants (cf., Williams v Upjohn Health Care Servs., 120 AD2d 729; see, CPLR 3212 [b]).

CPLR 3212(b) permits a court, including an appellate court, to search the record and award summary judgment to a party who did not move for it.

Grimaldi v. Pagan · filed 1987-12-07(b)

CPLR 3212 (b) provides that "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion”.

CPLR 3212(b) does not permit a court to grant summary judgment on a separate, unrelated claim when no party has moved for judgment on that claim.

Conroy v. Swartout · filed 1987-12-10(b)

As the quoted excerpt from CPLR 3212 (b) indicates, the power to grant summary judgment to a nonmoving party is predicated upon a motion for that relief by another party. ... A motion for summary judgment on one claim in any action does not permit a searching of the record to grant summary judgment on a separate, unrelated claim or defense as to which no such motion by any party has been made (Sutton v Cobb, 50 AD2d 995, 996).

Section 3212(b) requires a party opposing summary judgment to present admissible evidence showing a triable issue of fact; conclusory assertions are insufficient.

Adamowicz v. Claridge at Park Place, Inc. · filed 1987-12-28(b)

In order to defeat the appellant’s application for summary judgment, it was incumbent upon the plaintiffs to lay bare their proofs, and come forth with admissible evidence to refute the proof submitted by the appellant. At the very least, the plaintiffs had an obligation to show, by way of expert opinion, that there was some negligence in the emergency care rendered by the appellant. No such evidence was proffered, and accordingly, the plaintiffs have failed to meet their burden to defeat the motion.

Section 3212(b) requires a party opposing summary judgment to present evidence raising a triable issue of fact.

Marshall v. Romano · filed 1988-03-07(b)

The defendants have failed to set forth facts in evidentiary form to raise as a triable issue whether the sale of their home was subject to their purchasing another home in New Jersey.

Under CPLR 3212, an affidavit based on speculation and lacking personal knowledge is insufficient to defeat summary judgment.

Lipshie v. Peck · filed 1988-04-25

Such an affidavit is insufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557).

A party opposing summary judgment under CPLR 3212 must present affirmative proof showing a genuine triable issue of fact.

Conolog Corp. v. P. R. Electronics Export, Inc. · filed 1988-05-10

"[t]o defeat a motion for summary judgment, whether brought under CPLR 3212 or in lieu of ... complaint under CPLR 3213, the opposing party must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist”.

Section 3212(b) requires a party opposing summary judgment to offer admissible evidence raising a question of fact for trial.

Wilson v. Woodward Builders, Inc. · filed 1988-05-27(b)

In response to the motion, plaintiffs failed to come forth with evidentiary proof in admissible form raising any question of fact requiring a trial (CPLR 3212 [b]). Nothing has been offered from which it could be found that Gardner was negligent in the installation of the electrical system. Accordingly, summary judgment must be granted to Gardner dismissing plaintiffs’ complaint.

A party cannot defeat a summary judgment motion with general conclusory allegations that lack specific factual support.

Parker v. D/U Third Realty Co. · filed 1988-06-02

The law is well settled that a party cannot defeat a motion for summary judgment by general conclusory allegations which contain no specific factual references (Poluliah v Fidelity High Income Fund, 102 AD2d 720).

A party opposing summary judgment must present evidentiary facts sufficient to raise a triable issue; conclusory statements are insufficient.

Jo & Wo Realty Corp. v. City of New York · filed 1988-06-16

To defeat a motion for summary judgment, plaintiff must present evidentiary facts sufficient to raise a triable issue of fact; conclusory statements of fact or law are insufficient (see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 [1973]).

Under CPLR 3212(b), a court may decline to grant summary judgment to the nonmoving party when the movant may not have fully replied on the facts.

Raynes Associates Ltd. Partnership v. Augresani · filed 1988-06-30(b)

Perhaps summary judgment on the papers could be amended to grant summary judgment to respondent dismissing the petition under CPLR 3212 (b). I choose otherwise since petitioner may well have failed to reply factually under the impression that its legal position was impregnable.

Under CPLR 3212, conclusory allegations in an attorney’s affirmation are insufficient to raise a material issue of fact and defeat summary judgment.

Guilmette v. New York Telephone Co. · filed 1988-07-21

Moreover, the affirmation submitted by plaintiffs attorney consisted solely of conclusory allegations which were insufficient to raise a material issue of fact.

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party, but factual questions requiring a trial make that relief inappropriate.

McIntyre v. State · filed 1988-07-21(b)

The Court of Claims clearly had the power, in a proper case, to search the record and to grant summary judgment to a nonmoving party (CPLR 3212 [b]; Siegel, NY Prac § 282, at 339; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.08). In our view, this was not an appropriate case for the granting of such relief. ... In our view, there are questions of fact requiring a trial.

Section 3212(b) permits a court to grant summary judgment to a nonmoving party.

Catherwood v. American Sterilizer Co. · filed 1988-08-08(b)

Additionally, under CPLR 3212 (b) allowing the grant of summary judgment to a nonmoving party, these causes of action are dismissed as to all defendants.

Once a summary judgment movant meets its initial burden, the opponent must offer admissible proof to raise a triable issue; pretrial disclosure rules do not govern that proof.

Nandy v. Albany Medical Center Hospital · filed 1988-08-18

With respect to a motion for summary judgment, it is only after movant has met its initial burden that an opponent has any affirmative obligation with respect thereto. However, when the movant has met its threshold burden, regardless of whether the cause of action sounds in medical malpractice, strict products liability, traditional tort or other ground, affirmative proof in admissible form must be offered to raise an issue for the trier of fact (Vermette v Kenworth Truck Co., 68 NY2d 714, 717). At that juncture, rules concerning pretrial disclosure are inapplicable.

CPLR 3212 permits a court to search the record and grant summary judgment to a nonmoving party when no issue of fact remains.

Merrick Gables Ass'n v. Fields · filed 1988-08-08

We find that the action by the court in searching the record and dismissing the proceeding in favor of the nonmoving party was proper under CPLR 3212 (see, Andre v Pomeroy, 35 NY2d 361). With respect to the issues raised by the petitioners, it is clear that there were no issues of fact to be resolved by the court and that the granting of summary judgment to the nonmoving party was proper.

Section 3212(b) requires a party opposing supported summary judgment to show a genuine, triable issue of fact or an excuse for failing to do so.

Central Federal Savings F.S.B. v. Laurels Sullivan County Estates Corp. · filed 1989-02-02(b)

It was therefore incumbent upon plaintiff to come forward with evidence demonstrating a genuine, triable issue of fact or an excuse for not doing so (see, CPLR 3212 [b]; Vermette v Kenworth Truck Co., 68 NY2d 714, 716). Since plaintiff has failed in this regard, FSLIC is entitled to summary judgment.

Section 3212(b) permits a court to grant summary judgment to a defendant on its counterclaim when the plaintiff moves for summary judgment.

Dietrick v. Kemper Insurance · filed 1989-02-03(b)

Accordingly, we grant defendant summary judgment on its counterclaim (see, CPLR 3212 [b]), dismiss plaintiff’s complaint and declare that defendant has a valid lien to the full extent of the settlement proceeds subject to an apportionment of reasonable and necessary expenditures, including attorneys’ fees incurred in effecting the settlement.

CPLR 3212(b) permits a court considering a summary judgment motion to search the record and grant judgment to a party that made no cross motion.

Bosun's Locker, Ltd. v. Fireman's Fund Insurance · filed 1989-02-03(b)

Although defendant neither made a cross motion for partial summary judgment nor cross-appealed, a motion for summary judgment searches the record (CPLR 3212 [b]); thus, this court may grant summary judgment to defendant (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111).

To defeat a summary judgment motion under § 3212(b), the opposing party must provide evidentiary proof of a factual question; generalized, conclusory and speculative expert assertions are insufficient.

Bennett v. Superior Spring & Manufacturing Co. · filed 1989-02-14(b)

To successfully defeat a motion for summary judgment, the opposing party must show through evidentiary proof that a question of fact is present requiring denial of the motion (see, CPLR 3212 [b]; Bytner v Capital Newspaper, 112 AD2d 666, 668). The plaintiff offered an affidavit by an expert in opposition which contained only generalized, conclusory and speculative assertions insufficient to comply with this requirement.

Section 3212(b) requires a party opposing summary judgment to make a sufficient showing with admissible evidence.

Nidzyn v. Stevens · filed 1989-03-20(b)

Nevertheless, the opposing papers did not supply the necessary admissible evidentiary showing to successfully resist the motion (CPLR 3212 [b]).

Section 3212(b) permits summary judgment for a nonmoving party only when another party has moved on the specific issues involved.

Marsico v. Southland Corp. · filed 1989-03-13(b)

CPLR 3212 (b) does not permit the court to grant summary judgment, sua sponte, to a party absent a motion by some other party addressed to the specific issues (see, Conroy v Swartout, 135 AD2d 945, 946-947; Andriano v Caronia, 117 AD2d 640, 642-643; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943; see also, Mihlovan v Grozavu, 72 NY2d 506).

Section 3212(b) permits a court to search the record and grant summary judgment to a party who did not make a cross motion.

DeVito v. New York University College of Dentistry · filed 1989-04-03(b)

Although no cross motion was brought by plaintiff the court searches the record (CPLR 3212 [b]) and awards summary judgment dismissing defendants’ affirmative defense based on the release.

CPLR 3212(b) permits a court to award summary judgment to a party that did not separately move for it.

County of Broome v. Aetna Casualty & Surety Co. · filed 1989-05-04(b)

We note that while defendants did not appeal Supreme Court’s decision, nor did they separately move for summary judgment, we nevertheless award them summary judgment as authorized by CPLR 3212 (b).

Section 3212(b) permits a court deciding a summary judgment motion to search the record and grant summary judgment to the nonmoving party.

Harkin v. Culleton · filed 1989-06-28(b)

Pursuant to CPLR 3212 (b) the court searches ... the record and grants summary judgment in favor to plaintiff dismissing the affirmative defenses asserting the Statute of Limitations and improper service in the answer of defendant Culleton as to all causes of action, and in the answer of defendant McMurtry as to the fraud cause of action.

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party even if that party has not appealed.

Bulger v. Tri-Town Agency, Inc. · filed 1989-06-29(b)

Initially we note that while plaintiff did not cross-appeal, this court has the power to search the record and award summary judgment to a nonmoving party even where that party has not appealed (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111).

CPLR 3212(b) requires a party opposing summary judgment to present facts sufficient to require a trial of a factual issue.

In re the Estate of Lasek · filed 1989-09-12(b)

To successfully defeat a motion for summary judgment, a party must show "facts sufficient to require a trial of any issue of fact.” (CPLR 3212 [b].) ... Yet, to date this witness’s affidavit has not been produced. Thus this assertion is merely conclusory in nature and without weight to deny summary judgment.

A party opposing summary judgment must offer admissible proof showing that a factual issue requires a trial; bare allegations are insufficient.

Zolin v. Synagogue · filed 1989-10-02(b)

It is fundamental that, upon a motion for summary judgment, the party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

CPLR 3212(b) requires a party opposing summary judgment to submit admissible evidence showing a material factual question that requires trial.

Irwin v. Mucha · filed 1989-10-06(b)

To defeat the motion, defendant was required to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) requires a party opposing summary judgment to submit evidentiary proof that raises a question of fact.

Mason v. Mason · filed 1989-10-16(b)

Accordingly, since the defendant failed to submit any evidentiary proof to raise a question of fact as to the plaintiffs’ right to partition, summary judgment was properly awarded (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

CPLR 3212(b) permits a court to grant summary judgment to a nonmoving party, including on appeal.

Rhinebeck Bicycle Shop, Inc. v. Sterling Insurance · filed 1989-10-26(b)

Summary judgment, however, is one of the rare instances where relief may be granted to the nonmoving party either at nisi prius or on appeal (CPLR 3212 [b]).

An attorney’s affirmation without personal knowledge is insufficient to defeat a summary judgment motion.

Tibak v. City of New York · filed 1989-10-31

This was opposed by plaintiffs solely by an affirmation of an attorney without personal knowledge, which is insufficient to defeat such a motion (see, Oían v Farrell Lines, 105 AD2d 653, affd 64 NY2d 1092, supra).

Under CPLR 3212, a conclusory claim is insufficient to defeat a motion for summary judgment.

Cummings v. Arde Realty Corp. · filed 1989-10-31

Third-party plaintiffs’ conclusory claim that plaintiff’s employer failed to properly train, instruct or direct its employee in the performance of this work in a proper and safe manner was insufficient, as a matter of law, to defeat the motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 560).

CPLR 3212(b) requires a party opposing summary judgment to show facts sufficient to require a trial of a factual issue.

Abish v. Cetta · filed 1989-11-13(b)

In defeating a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR 3212 [b]).

Section 3212(b) permits an expert affidavit based on medical records to defeat summary judgment when it raises a material issue of fact.

Nandy v. Albany Medical Center Hospital · filed 1989-11-22(b)

This affidavit, though not as precise as we would prefer, is obviously based upon the relevant portions, if not all, of the child’s medical records; being based on a source of evidence " 'of a kind accepted in the [medical] profession * * * in forming a professional opinion’ ” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 726, quoting People v Sugden, 35 NY2d 453, 460; see, CPLR 3212 [b]), it is substantively sufficient to withstand defendants’ motions.

An attorney’s affirmation that lacks probative value does not establish a triable issue of fact in opposition to summary judgment.

Ferguson v. Meridian Distribution Services, Inc. · filed 1989-11-27(b)

The plaintiffs’ sole opposition to the defendants’ motion was an affirmation of their attorney which lacks probative value (CPLR 3212 [b]).

Section 3212(b) permits a court to search the record on a summary judgment motion and grant judgment to a nonmoving party when no triable issue remains.

W.W.W. Associates, Inc. v. Giancontieri · filed 1989-12-13(b)

Ordered that the order and judgment (one paper) is reversed, on the law, with costs, the defendants’ motion for summary judgment is denied, the complaint is reinstated, and, upon searching the record pursuant to CPLR 3212 (b), summary judgment is granted in favor of the plaintiff and against the defendants, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate judgment in accordance herewith.

Section 3212(b) permits a court to grant summary judgment to a nonmoving party when the record shows that party is entitled to judgment.

Sassone v. Town of Queensbury · filed 1990-01-04(b)

While we agree that Supreme Court properly denied plaintiffs cross motion for partial summary judgment, we are of the view that judgment should have been directed in favor of defendant, the nonmoving party (see, CPLR 3212 [b]).

Section 3212(b) permits a court to grant summary judgment to a nonmoving party when the record warrants it.

Poughkeepsie Savings Bank, FSB v. Wagner · filed 1990-03-05(b)

Its application to this case requires not only that defendant’s motion be denied but that summary judgment be granted to the plaintiff on the third cause of action of the complaint, under the provisions of the final sentence of CPLR 3212 (b).

To defeat a motion for summary judgment under CPLR 3212(b), the opposing party must present admissible evidence showing a question of fact.

Gennari v. Continental Insurance · filed 1990-04-09(b)

To defeat a motion for summary judgment, the opposing party must show through evidentiary proof in admissible form that a question of fact is present requiring denial of the motion (see, CPLR 3212 [b]; Bytner v Capital Newspaper Div. of Hearst Corp., 112 AD2d 666, 668).

Section 3212(b) requires a party opposing summary judgment to submit facts that raise a triable issue of fact.

Emerson v. Village of Florida · filed 1990-04-26(b)

To defeat a motion under CPLR 3212 (b), a party must submit facts which give rise to a triable issue of fact (see, CPLR 3212 [b]; see also, Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281).

Once a summary judgment movant supports its motion, the opposing party must produce admissible evidence showing a material factual issue for trial.

Morrison v. Flintosh · filed 1990-07-05(b)

Thus, the burden shifted to plaintiff to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [she] rests [her] claim” (Zuckerman v City of New York, 49 NY2d 557, 562; see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,1067-1068).

A party opposing summary judgment must present admissible evidence showing a triable issue of fact; conclusory assertions are insufficient.

Sofsky v. Rosenberg · filed 1990-07-19(b)

In order to defeat a motion for summary judgment, the opposing party must "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

To defeat summary judgment, the opposing party must show facts sufficient to require a trial of a material factual issue.

Mom's Bagels of New York, Inc. v. Sig Greenebaum Inc. · filed 1990-08-23(b)

Repeatedly it has been held that " 'to defeat a motion for summary judgment the opposing party must "show facts sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b])’ ” ... Applying the legal authority supra, to this matter, we find that plaintiff has not met its burden to raise a triable material issue of fact.

Section 3212(b) permits a court to search the record and grant summary judgment to a party that did not move for it when there are no triable issues of fact.

In re the Estate of Angiulli · filed 1990-09-24(b)

Although Hineline did not cross-move for summary judgment, the court has searched the record and determined that, since there are no triable issues of fact concerning the validity of Hineline’s objections, judgment should be entered in favor of Hineline, sustaining the objections.

A party opposing summary judgment must come forward with proof supporting its claim.

Acolyte Electric Corp. v. City of New York · filed 1990-09-27

In any event, given the plaintiffs failure to come forward with proof that the city had improperly assessed liquidated damages, summary judgment pursuant to CPLR 3212 was properly granted as to the third, fifth and tenth causes of action.

Section 3212(b) requires a party opposing summary judgment to raise a triable issue of fact.

Sofsky v. Rosenberg · filed 1990-10-18(b)

In order to defeat the defendants’ motions for summary judgment, plaintiff was required to show a triable issue of fact concerning the delivery of the deed to Rosenberg (CPLR 3212 [b]; McGahee v Kennedy, 48 NY2d 832).

CPLR 3212(b) permits a court to grant summary judgment to a party that did not formally move for it when the record warrants that relief.

Keryakos Textiles, Inc. v. CRA Development, Inc. · filed 1990-11-21(b)

Although defendant never formally moved for summary judgment, on this record it is apparent that summary judgment in its favor declaring that no lease agreement existed between the parties should have been awarded (see, CPLR 3212 [b]).

A party opposing summary judgment must present evidentiary facts that raise a bona fide triable issue; conclusory allegations do not suffice.

2550 Olinville Avenue, Inc. v. Crotty · filed 1991-01-29

Defendants’ argument that there are good reasons why a prudent mortgagee would decline to accept prepayment of the mortgage is insufficient, for purposes of opposing a motion for summary judgment, to establish a bona fide triable issue of fact as to whether defendants indeed had a good reason for declining to accept prepayment.

Section 3212(b) permits summary judgment to be denied when the opposing party submits admissible proof raising a triable issue of fact.

Shaw v. Friedman · filed 1991-02-01(b)

Although plaintiff has met its burden of establishing a prima facie case for an account stated (see, CPLR 3212 [b]), defendant has met his burden of raising a triable issue of fact by submitting proof in admissible form that the account had been assigned prior to the commencement of the action and plaintiff no longer had title to the account nor an interest in it.

Under CPLR 3212, inadmissible evidence offered in opposition to summary judgment cannot defeat a motion supported by unambiguous written agreements.

CrossLand Savings, FSB v. Loguidice-Chatwal Real Estate Investment Co. · filed 1991-03-12

Upon examination of the record, we find that the IAS court properly granted plaintiff CrossLand’s motion for summary judgment to the extent of granting foreclosure on the subject property and properly excluded parole and hearsay evidence submitted by the Loguidice defendants in opposition thereto.

Section 3212 requires evidence raising a triable issue of fact to defeat summary judgment; an expert’s unsupported conclusions are insufficient.

Amatulli v. Delhi Construction Corp. · filed 1991-04-02

Inasmuch as we read plaintiff’s expert’s affidavit as containing only bare conclusory assertions in respect to industry-wide knowledge regarding in-ground installation of these above-ground pools, it was insufficient to raise a triable issue of fact, sufficient to defeat Seaspray’s motion for summary judgment.

A party opposing summary judgment must present evidentiary facts supporting its claims; unsupported agency and vicarious liability theories cannot defeat the motion.

Mallamo v. Getty Petroleum Corp. · filed 1991-04-02

Plaintiff failed to present any evidentiary facts showing that Getty exercised any control or supervision over the performance of the repair work on the plaintiff’s automobile (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). In the absence of such a factual showing, plaintiff’s principal-agency and vicarious liability theories of recovery as against defendant Getty are insufficient, as a matter of law, to defeat Getty’s motion for summary judgment (Indig v Finkelstein, 23 NY2d 728).

CPLR 3212(b) permits summary judgment for a party that did not cross-move when the record warrants that relief.

North River Insurance v. ECA Warehouse Corp. · filed 1991-04-09(b)

In light of the foregoing, and notwithstanding its failure to cross-move for such relief (CPLR 3212 [b]), summary judgment should be granted to defendant by way of a declaratory judgment in its favor ... declaring plaintiff’s duty to defend it in the underlying action.

A party opposing summary judgment cannot meet its burden with a conclusory, unsupported attempt to explain away an admission of liability.

CIT Group/Factoring Manufacturers Hanover, Inc. v. Supermarkets General Corp. · filed 1991-04-11

Defendant’s conclusory and unsupported attempt to explain away this admission is insufficient to sustain its burden in opposing a motion for summary judgment (see, Tobron Off. Furniture Corp. v King World Prods., 161 AD2d 355).

Under CPLR 3212, an affirmation by counsel that alleges no facts is insufficient to meet a party’s burden in opposing summary judgment.

Evert v. Banco Popular de Puerto Rico · filed 1991-04-18

Defendant’s opposition to plaintiffs cross-motion for summary judgment consisted solely of an affirmation of counsel containing no allegations of fact, and was therefore insufficient to sustain defendant’s burden in opposing the summary judgment motion (see, Tobron Off. Furniture Corp. v King World Prods., 161 AD2d 355).

Section 3212(b) allows a court to search the record and grant summary judgment to a nonmoving party.

Eagle Insurance v. Barraeau · filed 1991-05-06(b)

Moreover, on a motion for summary judgment the court is entitled to search the record and grant summary judgment to a nonmoving party (CPLR 3212 [b]). As the record indicates that Joses’ policy was effective March 15, 1988, summary judgment is granted in favor of defendant Joses and that part of plaintiff’s complaint is dismissed.

A party opposing summary judgment must offer probative, admissible evidence supporting its claim.

Daniel B. Grossman, Inc. v. Auer's Van & Express Co. · filed 1991-05-07

The plaintiff, in opposing summary judgment, failed to proffer probative, admissible and evidentiary facts establishing that defendant Auer’s wrongfully threatened to remain in possession of the artwork unless plaintiff executed and delivered the general release (Edison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d 249, 254), or that the ordinary remedy of an action for breach of contract would not adequately redress the alleged wrong (Austin Instrument v Loral Corp., 29 NY2d 124, 131; cf., Sosnoff v Carter, 165 AD2d 486).

Section 3212(b) requires evidentiary facts raising a bona fide issue to defeat summary judgment; conclusory or irrelevant allegations do not suffice.

Masi v. Zavitz Bros. · filed 1991-05-13(b)

Only the existence of a bona fide issue raised by evidentiary facts and not based on conclusory or irrelevant allegations will suffice to defeat the motion (see, CPLR 3212 [b]; Rotuba Extruders v Ceppos, 46 NY2d 223). Upon a review of Zavitz’s submissions, we find that they lack evidentiary facts upon which a meritorious case against the appellant can be established. Accordingly, we find that the appellant was entitled to summary judgment.

Section 3212(b) requires a party opposing summary judgment to provide evidence showing a genuine triable issue of fact.

Fiorenza v. City of Mount Vernon · filed 1991-05-20(b)

Thus, since the petitioner failed to meet her burden of coming forward with proof in evidentiary form to show the existence of genuine triable issues of fact (see, CPLR 3212 [b]; Fresh Meadow Country Club v Village of Lake Success, 158 AD2d 581, 582), summary judgment was properly granted dismissing the proceeding.

Section 3212 requires a party opposing summary judgment to lay bare her proofs to defeat the motion.

Acosta v. Fuentes · filed 1991-05-21

The motion before this court, however, is one for summary judgment, and, accordingly, to defeat the motion, the plaintiff is required to lay bare her proofs.

A party opposing summary judgment need not submit a medical expert affidavit when lay testimony can establish the disputed fact.

Cotilletta v. Tepedino · filed 1991-07-29

Here, however, the facts do not relate to malpractice but rather to the question of consciousness. This, as we have determined, may be established by lay opinion evidence. Therefore, it must be concluded that plaintiff need not present medical affidavits in order to prevail in these motions.

Under CPLR 3212(b), a party opposing summary judgment must show facts sufficient to require a trial of a factual issue.

Prudential Insurance v. Dewey · filed 1991-08-15(b)

Repeatedly it has been held that " 'to defeat a motion for summary judgment the opposing party must "show facts sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b])’ ” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Mom’s Bagels v Greenbaum, 164 AD2d 820, 823 [1st Dept 1990], appeal dismissed 77 NY2d 902 [1991]).

Section 3212(b) empowers and obligates an appellate court to grant summary judgment to a nonmoving, nonappealing party when the record shows no genuine triable issue of fact.

Chamberlain v. Town of Portville · filed 1991-11-15(b)

Where the record on appeal demonstrates the absence of any genuine triable issue of fact, this court has the power and the obligation to grant summary judgment even to a nonmoving, nonappealing party (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111; CPLR 3212 [b]). This is an appropriate case for the exercise of that power.

A party opposing summary judgment must show facts sufficient to require a trial of a factual issue.

Zolotar v. New York Life Insurance · filed 1991-11-26(b)

It is well-established law that "to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd [b])” ... We find no questions of fact herein which require a trial.

Section 3212(b) permits a court deciding a summary judgment motion to grant summary judgment to the nonmoving party.

Jay Levy Associates v. Mohlenhoff & Sons, Inc. · filed 1992-02-10(b)

We also find that the contracts contained liquidated damages provisions limiting the defendants’ remedy to the retention of the down payments, a fact which was conceded by the defendants in their brief and upon the oral argument of this appeal. Accordingly, we dismiss the counterclaims as well (see, CPLR 3212 [b]).

Section 3212(b) permits a court to grant partial summary judgment to the opposing party on an issue raised by a summary judgment motion.

2505 Bedford Realty Co. v. Woodson · filed 1992-02-24(b)

Pursuant to CPLR 3212 (b) the court grants partial summary judgment to petitioner to that extent and finds the increases are part of the legal- rent.

Section 3212(b) requires a party opposing summary judgment to offer admissible evidence showing facts sufficient to require a trial.

Harnish v. Joseph J. Naples & Associates, Inc. · filed 1992-03-13(b)

Plaintiff failed to come forward with evidentiary proof in admissible form to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212 permits summary judgment when the movant establishes a right to judgment as a matter of law and the opponent fails to raise a material question of fact with evidentiary proof.

Klapper v. Shapiro · filed 1992-04-24

In view of the foregoing, plaintiff has established his right to recovery as a matter of law. Defendant has failed to produce evidentiary proof to raise any material questions of fact sufficient to defeat summary judgment against him.

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

Barber v. Daly · filed 1992-07-23(b)

On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd [b]).

A party opposing summary judgment must show facts sufficient to require a trial on an issue of fact.

Kurrikoff v. Hamburg · filed 1992-12-30(b)

Plaintiffs failed to show facts sufficient to require a trial on any issue of fact in opposing the Town’s and County’s motions for summary judgment (see, CPLR 3212 [b]).

Section 3212(b) permits a court to grant summary judgment to a nonmoving party without a cross-motion when that party is entitled to judgment.

Chrysler Credit Corp. v. Smith · filed 1993-03-01(b)

CPLR 3212 (b) provides that "If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” It is apparent that defendant is entitled to summary judgment and the complaint should be dismissed.

A party opposing summary judgment must support allegations with evidentiary facts; conclusory allegations alone are insufficient.

Bassim v. Howlett · filed 1993-03-04

Such conclusory allegations, unsupported by any evidentiary facts, are patently insufficient to avoid dismissal on a summary judgment motion (see, Cosme v Town of Islip, 63 NY2d 908).

Section 3212(b) permits a court to grant summary judgment to the opposing party when the motion record supports that result.

Seittelman v. Sabol · filed 1993-06-01(b)

Based upon the foregoing, pursuant to CPLR 3212 (b), summary judgment is granted in favor of plaintiffs to the extent that the court finds that defendants failed to accurately and completely inform applicants of the reimbursement provisions of 18 NYCRR 360-7.5 (a) (5).

A party opposing summary judgment must raise a valid defense or a factual issue sufficient to defeat the motion.

North Fork Bank & Trust Co. v. Thomason Industries Corp. · filed 1993-06-28

Additionally, the defendants failed to raise an issue of fact sufficient to defeat the plaintiff’s motion for summary judgment with respect to the defendant guarantors.

Under CPLR 3212, once a movant establishes facial entitlement to summary judgment, the opposing party must present admissible evidence of a triable issue or an acceptable excuse for failing to do so.

Schiraldi v. U.S. Mineral Products · filed 1993-06-29

The absence of such proof established appellant’s facial nonliability and shifted to plaintiff the burden of demonstrating by admissible evidence the existence of a factual issue requiring a trial of the action or of tendering an acceptable excuse for his failure to do so (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967-968).

CPLR 3212(b) requires a party opposing summary judgment to present proof of a disputed material fact.

Arsenault v. Forquer · filed 1993-10-12(b)

Regarding the second letter, which may have been published some time between August 11, 1988, and August 30, 1988, the plaintiff fares no better, as he has failed to lay bare his proof as to the publication date of that letter (CPLR 3212 [b]).

Section 3212 requires a party opposing summary judgment to produce admissible evidence showing a material issue of fact that requires a trial.

Tortoriello v. Bally Case, Inc. · filed 1994-01-18

The party opposing summary judgment must produce evidentiary proof in admissible form sufficient to require a trial on material issues of fact on which the opposing claim rests (supra, at 967, citing Zuckerman v City of New York, 49 NY2d 557, 562, supra).

Section 3212(b) permits a court to grant summary judgment to the opposing party when the motion papers show no triable issue of fact.

Town of Brookhaven v. Spadaro · filed 1994-05-16(b)

What is more, it is clear from the papers submitted by the plaintiff in opposition to the defendants’ motion that there is no triable issue of fact which would preclude the granting of summary judgment in favor of the plaintiff (see, CPLR 3212 [b]).

Section 3212(b) requires a party opposing a supported summary judgment motion to submit admissible evidence showing facts sufficient to require a trial.

Zankowski v. Johns-Manville Corp. · filed 1994-05-27(b)

The burden then shifted to plaintiffs to submit evidentiary proof in admissible form to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see also, Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiffs met their burden by the submission of the deposition testimony of decedent and a fellow employee, together with invoices that showed that Armstrong’s products were shipped to decedent’s worksite.

Section 3212(b) permits summary judgment for a nonmoving party when the submissions establish entitlement to judgment as a matter of law.

Boland v. State · filed 1994-07-13(b)

The court declines to exercise its power to grant summary judgment in claimant’s favor (CPLR 3212 [b]) because the submissions now before us do not establish as a matter of law that the ministerial error in question was a proximate cause of the children’s injuries.

CPLR 3212(b) permits a court to search the record and award summary judgment to a party that did not move for it.

Smerka v. Niagara Mohawk Power Corp. · filed 1994-07-15(b)

Notwithstanding the fact that defendant did not cross-move for summary judgment, this Court has the power to search the record and award summary judgment to a non-moving party (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111). Therefore, we grant partial summary judgment to defendant dismissing plaintiffs’ cause of action under Labor Law § 240 (1).

Section 3212(b) allows a court hearing a summary judgment motion to search the record and award judgment to a nonmoving party without a cross-motion.

New York State Medical Care Facilities Finance Agency v. Bank of Tokyo Trust Co. · filed 1994-11-28(b)

Accordingly, defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and for summary judgment pursuant to CPLR 3212 is denied, and upon searching the record the court awards summary judgment to plaintiff against defendant BOTT.

A party opposing summary judgment must present evidence showing a genuine, triable issue of fact.

Meyer v. Shearson Lehman Bros. · filed 1995-01-24

Nor did the IAS Court err in dismissing the tenth, eleventh and twelfth causes of action, seeking monetary damages for defendant Shearson’s alleged defamation and "blackballing” of the plaintiff within the brokerage community when she sought employment therein, for the plaintiff’s failure, in both the complaint and in opposing the motion for summary judgment, to lay bare her proofs and make an evidentiary showing that there exist genuine, triable issues of fact requiring a trial (see, Oates v Marino, 106 AD2d 289, 291-292), by setting forth the specific defamatory words complained of (see, Pappalardo v Westchester Rockland Newspapers, 101 AD2d 830, affd 64 NY2d 862), and as barred by the one-year Statute of Limitations for defamation set forth in CPLR 215 (3) (Clark v New York Tel. Co., 52 AD2d 1030, affd 41 NY2d 1069).

Section 3212 requires a party opposing summary judgment to produce admissible evidence sufficient to show a material issue of fact requiring trial.

MBF Clearing Corp. v. Shine · filed 1995-02-28

The IAS Court properly awarded summary judgment in favor of the defendants dismissing the first through fourth causes of action of the amended complaint for conspiracy to breach a contract, intentional misrepresentation, conspiracy to defraud, conversion and failure to recompense for fraudulent activities as against those defendants because plaintiff failed to produce evidentiary proof, in admissible form, with respect to whether the defendants had committed any acts which breached a Customer Agreement with the plaintiff for the establishment and operation of a commodities account, sufficient to establish the existence of material issues of fact requiring a trial (Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) allows a court deciding a summary judgment motion to search the record and award judgment to a party that did not move for it.

Cellular Telephone Co. v. Village of Tarrytown · filed 1995-03-13(b)

As set forth in CPLR 3212 (b), "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion”. ... Accordingly, the Supreme Court had the authority to search the record and grant judgment in favor of the plaintiff in this case.

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party when summary judgment motions are before it.

Video-Cinema Films, Inc. v. Seaboard Surety Co. · filed 1995-04-18(b)

There were two motions for summary judgment pending before the IAS Court, upon which it was authorized to search the record and grant judgment to the non-moving party (CPLR 3212 [b]; see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110).

Section 3212(b) permits a court to search the record and grant summary judgment to a party that did not move for it.

Greenleaf v. Lachman · filed 1995-06-13(b)

Searching the record (CPLR 3212 [b]), including the submitted parol evidence, we find that enforcement of the note in this instance would be in contravention of the public policy of this forum (Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 274). We therefore grant summary judgment to the defendant, without costs.