N.Y. C.P.L.R. § 3212

CPLR 3212(b) permits summary judgment for a nonmoving party only on a cause of action or issue raised by the motion, with fair notice and an opportunity to present defenses.

Whitman Realty Group, Inc. v. Galano · filed 2008-06-03(b)

A court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]). The power of the court to award summary judgment for or against a nonmoving party pursuant to CPLR 3212 (b) does not dispense with the necessity for fair notice and an opportunity of a party to present his or her defenses (see Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]).

Once a summary judgment movant establishes its entitlement to judgment, the opposing party must present admissible evidence raising a triable issue of fact.

Walker v. Incorporated Village of Freeport · filed 2008-06-17(b)

The plaintiff failed to raise a triable issue of fact as to either matter (see CPLR 3212 [b]).

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

Five Star Bank v. CNH Capital America, LLC · filed 2008-10-03(b)

Thus, under the circumstances of this case, we search the record pursuant to CPLR 3212 (b) and grant summary judgment dismissing the second amended complaint against WFS, a nonmoving party (see generally Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111 [1984]).

Section 3212(b) permits a court to grant summary judgment to a nonmoving party when the record clearly establishes that party’s entitlement to relief.

State v. Breeyear · filed 2008-10-16(b)

Although plaintiff sought summary judgment in its opposition papers to defendants’ motion, it did not formally move for such relief. Nevertheless, this Court has the authority to review the record and grant summary judgment to a nonmoving party where the record, as presented, clearly establishes that the party is entitled to such relief (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106,110-111 [1984]; Sherba v Midstate Precast Sys., 230 AD2d 944 [1996]).

A party opposing summary judgment must support its asserted material facts with evidence in admissible form or provide an acceptable excuse.

Cangialosi v. Gotham Construction. Co. · filed 2008-10-22

Since neither of defendants’ contentions is accompanied by evidence in admissible form of the material facts upon which the contention rests, and no acceptable excuse appears, defendants have, for this reason alone, failed to raise a triable issue.

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

Warner v. Kaplan · filed 2008-10-28(b)

Yet, there are no affidavits from either of these individuals. Thus, plaintiffs have not shown facts sufficient to require a trial on this issue.

Section 3212(b) permits a court to search the record on a pending summary judgment motion and award judgment to a nonmoving party on a cause of action placed in issue by the papers.

Sce v. Ach · filed 2008-11-05(b)

Finally, although the defendant did not cross-move for summary judgment herein, “CPLR 3212 (b) permits the court to search the record where there is a pending motion for summary judgment, and then award judgment where it is warranted in favor of a nonmoving party as to a cause of action that has been placed in issue by the papers” ... Accordingly, the defendant is entitled to partial summary judgment dismissing so much of the complaint as seeks damages for nonpayment of installment payments of the promissory note, due from September 1, 1996 until July 1, 1997.

Section 3212(b) permits a court to search the record on a summary judgment motion and grant judgment to a nonmoving party without prior notice.

In re the Estate Calundann · filed 2008-11-19(b)

However, CPLR 3212 (b) authorizes the court, upon a motion for summary judgment, to search the record and grant a nonmovant summary judgment without giving prior notice to the parties ... Accordingly, the court’s motion for summary judgment pursuant to CPLR 3212 (b) is granted in favor of the Public Administrator.

CPLR 3212(b) requires a party opposing summary judgment to raise a triable issue of fact after the movant makes a prima facie showing.

Pastors v. Town of Harrison · filed 2008-12-09(b)

In opposition to the plaintiffs prima facie showing that the defect which caused her trip-and-fall accident was created by the defendant’s negligence in repairing the roadway in question (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), the defendant failed to raise a triable issue of fact (see CPLR 3212 [b]).

An opponent of summary judgment who fails to submit admissible proof of a material factual dispute must offer an acceptable excuse; conclusory allegations are insufficient.

Metro North Owners, LLC v. Thorpe · filed 2008-12-25(b)

Petitioner submits proof in inadmissible form and fails to demonstrate an acceptable excuse for its failure to meet the requirements of tender in admissible form.

An opponent of summary judgment must raise a triable issue of fact.

Brewster v. Five Towns Health Care Realty Corp. · filed 2009-02-10(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]).

Section 3212(b) allows a court to search the record and award summary judgment to a nonmoving party on an issue raised by the motion.

Group v. Apple Mac & R Corp. · filed 2009-02-24(b)

As for the defendants’ appeal from so much of the order as, upon searching the record, awarded summary judgment to the plaintiff John L. O’Kelly on the seventh cause of action sounding in quantum meruit, the Supreme Court properly exercised its authority pursuant to CPLR 3212 (b) in searching the record and awarding summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Federal Natl. Mtge. Assn. v Katz, 33 AD3d 755 [2006]).

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

Frenchman v. Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP · filed 2009-03-03(b)

Alternatively, 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]).

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

Richmond Farms Dairy v. National Grange Mutual Insurance · filed 2009-03-20(b)

Thus, under the circumstances of this case, we search the record pursuant to CPLR 3212 (b) and grant summary judgment in favor of Cherry Valley, a nonmoving party, and we grant judgment declaring that it is not obligated to provide excess coverage for Richardson under the umbrella policy.

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party to the extent the record establishes its entitlement.

RPI Professional Alternatives, Inc. v. Citigroup Global Markets Inc. · filed 2009-04-30(b)

Since defendant cross-moved for summary judgment on the merits of its breach-of-contract counterclaim, the court had authority to search the record and grant summary judgment in favor of plaintiff, the nonmoving party, to the extent the record established its entitlement thereto (CPLR 3212 [b]; DCA Adv. v Fox Group, 2 AD3d 173 [2003]).

Section 3212(b) requires evidence based on personal knowledge to raise a triable issue of fact in opposition to summary judgment.

Jock v. Landmark Healthcare Facilities, LLC · filed 2009-05-07(b)

Defendants failed, in opposition, to submit evidence raising triable issues of material fact (or, on their own motion, to establish their entitlement to summary judgment) on their liability under Labor Law § 240 (1).

Under CPLR 3212(b), evidence opposing summary judgment must raise a triable issue of fact.

Moxey v. County of Westchester · filed 2009-06-30(b)

The evidence which the plaintiff submitted in opposition failed to raise a triable issue of fact (see CPLR 3212 [b]).

A party opposing summary judgment must raise a triable issue of fact.

Gerardi v. Verizon New York, Inc. · filed 2009-10-27(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]) as to whether the defendants bore any liability for the occurrence.

Under CPLR 3212(b), an opponent must raise a triable issue of fact after the movant makes a prima facie showing for summary judgment.

Forminio v. City of New York · filed 2009-12-15(b)

In opposition to the appellant’s prima facie showing, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]).

CPLR 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party on an issue raised by the motion.

Rivera v. Port Authority · filed 2010-01-26(b)

This Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see Surace v Commonwealth Land Tit. Ins. Co., 62 AD3d 861, 862 [2009]; Madero v Pizzagalli Constr. Co., 62 AD3d 670, 672-673 [2009]; DiLernia v Khan, 62 AD3d 644, 646 [2009]).

Once the movant makes a prima facie case for summary judgment, section 3212(b) requires the opposing party to show facts sufficient to require a trial.

Meridian Management Corp. v. Cristi Cleaning Service Corp. · filed 2010-02-16(b)

Once this burden has been met, the party opposing such motion must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]) “by producing evidentiary proof in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

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

Mormile v. Jamestown Management Corp. · filed 2010-03-09(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]).

A party opposing summary judgment must submit admissible evidence that raises a triable issue of fact.

Kuperberg v. Montalbano · filed 2010-04-20(b)

The admissible medical evidence submitted by the plaintiff in opposition to the cross motion failed to raise a triable issue of fact (see CPLR 3212 Ob]).

Under CPLR 3212(b), a party opposing summary judgment must raise a triable issue of fact.

Russ v. Fried · filed 2010-05-25(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]).

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

Wilk v. Lewis & Lewis, P.C. · filed 2010-07-02(b)

In any event, defendants moved for summary judgment, and it is well settled 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]; see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; JCS Controls, Inc. v Stacey, 57 AD3d 1372, 1373 [2008]).

Once the movant offers sufficient proof, the opposing party must show facts that require a trial.

Rozina v. Casa 74th Development LLC · filed 2010-08-27(b)

Once such proof has been offered, to defeat summary judgment “the opposing party must ‘show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd. [b]).”

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

Tesmer v. Colonna · filed 2010-10-01(b)

Also, pursuant to CPLR 3212 (b), we search the record and grant summary judgment in favor of Weese dismissing the complaint against her, despite her failure to seek that relief.

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

Soldiers', Sailors', Marines' & Airmen's Club, Inc. v. Carlton Regency Corp. · filed 2010-11-10(b)

Pursuant to CPLR 3212 (b), this court has the discretion to grant summary judgment to a nonmoving party if it appears that such party is entitled to judgment (see also Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]).

A party opposing summary judgment must demonstrate a triable issue of fact.

Perez v. City of New York · filed 2010-12-14(b)

In opposing summary judgment, the plaintiff failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Section 3212(b) permits a court to award summary judgment to a nonmoving party on an issue already squarely presented.

Capital District Enterprises, LLC v. Windsor Development of Albany, Inc. · filed 2010-12-16(b)

Given Supreme Court’s inherent power to award summary judgment to a nonmoving party on an issue already squarely presented to the court, we find it unnecessary to address plaintiffs’ argument that Supreme Court abused its discretion in considering defendants’ untimely cross motion for summary judgment (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111 [1984]).

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.

GILPIN, GARY W. v. OSWEGO BUILDERS, INC. · filed 2011-09-30(b)

We also conclude that the court erred in granting summary judgment to defendants dismissing plaintiffs’ fraudulent misrepresentation claim pursuant to CPLR 3212 (b), which provides that, “[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. ... Plaintiffs established their entitlement to partial summary judgment as a matter of law on their fraudulent misrepresentation cause of action, but defendants raised a triable issue of fact inasmuch as the conflicting affidavits of plaintiffs and Olinsky raise issues of credibility that can only be resolved by a trier of fact (see Burgio v Ince, 79 AD3d 1733, 1734-1735; Harrington Group, Inc. v B/G Sales Assoc., Inc., 41 AD3d 1161, 1162).

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

Schenpanski v. Promise Deli, Inc. · filed 2011-10-25(b)

Further, the Supreme Court properly, in effect, searched the record and awarded summary judgment to Promise Deli dismissing the complaint insofar as asserted against it on the same ground (see CPLR 3212 [b]).

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

CAGNINA, CHRISTINA G. v. ONONDAGA COUNTY · filed 2011-12-30(b)

Although plaintiff did not cross-move for summary judgment on the declaratory judgment cause of action, CPLR 3212 (b) permits us to search the record and to grant summary judgment to a nonmoving party where, as here, it appears that a nonmoving party is entitled to such relief.

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party on an issue raised by the motions.

Morette v. Kemper, Unitrin Auto & Home Insurance · filed 2012-01-10(b)

However, because a nonmoving party may be awarded summary judgment “with respect to a cause of action or issue that is the subject of the motions before the court” (Dunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996] [citations omitted]), and this court having searched the record, plaintiffs are granted partial summary judgment (CPLR 3212 [b]) determining that, subject to compliance with other conditions of the policy, the plaintiffs are entitled to SUM benefits for Morette’s injuries and death.

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

Rich v. West 31st Street Associates, LLC · filed 2012-02-02(b)

However, such relief was warranted in light of the arguments and evidence proffered by defendants and may be granted to a nonmoving party upon a search of the record (CPLR 3212 [b]).

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party on an issue addressed by the motion.

Seven Springs, LLC v. Nature Conservancy · filed 2012-05-01(b)

Further, ... upon our authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212 [b]), we award summary judgment to the Conservancy declaring that ... (4) the plaintiff is not authorized to remove the gate or any other impediment existing in the vicinity of “Pole 40” on Oregon Road pursuant to an express easement appurtenant (see Town of Pound Ridge v Golenbock, 264 AD2d 773 [1999]).

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

Joy Builders, Inc. v. Conklin · filed 2012-06-20(b)

Accordingly, the Supreme Court properly denied the petitioner’s motion for summary judgment on the petition, and properly ... searched the record and awarded summary judgment to the respondents dismissing the petition (see CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party without a cross motion when the record warrants it.

Elmont Open MRI & Diagnostic Radiology, P.C. v. New York Central Mutual Fire Insurance · filed 2012-08-17(b)

The court may search the record and grant summary judgment to a non-moving party if such relief is appropriate. ... Under these circumstances, it is appropriate for the court to search the record and grant summary judgment to the non-moving party.

A party opposing a properly supported summary judgment motion must raise a triable issue of fact.

Nelson v. County of Westchester · filed 2012-11-07(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

CPLR 3212(b) permits a court to search the record and award summary judgment to a nonmoving party on an issue raised by the motion.

National Grid Corporate Services, LLC v. LeSchack & Grodensky, P.C. · filed 2012-11-14(b)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212 [b]; Cocom-Tambriz v Surita Demolition Contr., Inc., 84 AD3d 1300, 1301 [2011]; Harsch v City of New York, 78 AD3d 781, 784 [2010]).

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

HOPEWELL VOLUNTEER FIRE DEPARTMENT v. GARDNER, COLLEEN C. · filed 2012-12-21(b)

We conclude that Supreme Court erred in granting petitioners’ motion for summary judgment on the petition and, indeed, we conclude that the court should have granted summary judgment in favor of respondent pursuant to CPLR 3212 (b) and dismissed the petition.

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

Benatouil v. Calhoun School · filed 2012-12-26(b)

Once such proof has been offered, in order to defend the summary judgment motion, the opposing party must “show facts sufficient to require a trial of any issue of fact.” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Freedman v Chemical Constr. Corp., 43 NY2d 260 [1977]; Spearmon v Times Sq. Stores Corp., 96 AD2d 552 [2d Dept 1983].)

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

Orange County Legislature v. Diana · filed 2013-03-21(b)

CPLR 3212 (b) nevertheless provides, in relevant 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.” Thus, since the parties have laid bare their proof, and although not formally moving for such, the court nevertheless concludes, and so finds, that petitioner is entitled to summary judgment on the article 78, injunctive and declaratory relief which it seeks, insofar as hereinafter set forth and for the reasons enumerated.

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

Whalen v. Villegas · filed 2013-04-01(b)

CPLR 3212 (b) gives the court authority to search the record and grant summary judgment to a nonmoving party. ... Since Whalen’s third cause of action is an action to recover damages for breach of contract, to the extent this cause of action seeks damages for negligence, the court searches the record and grants summary judgment to the defendants dismissing the third cause of action.

Section 3212(a) permits a party to move for summary judgment after issue has been joined; filing an answer joins issue.

Ruotolo v. Mussman · filed 2013-04-18(a)

CPLR 3212 (a) allows a party to move for summary judgment “after issue has been joined.” Defendants filed their answer, and thus joined issue, before they moved for summary judgment.

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party without a cross motion on claims raised by the moving party.

Bryan L. Salamone, P.C. v. Cohen · filed 2013-05-03(b)

Inasmuch as plaintiff has unsuccessfully moved for summary judgment, the provisions of CPLR 3212 (b) permit the court to “search the record” and, if legally efficacious, it may sua sponte grant summary judgment in favor of the non-moving party without the need for a cross motion, provided that the same is confined to the action or causes of action interposed by the moving party (Costello v Hapco Realty, 305 AD2d 445 [2d Dept 2003]; Santagata v Vinegar Hill Group, LLC, 41 AD3d 576 [2d Dept 2007]).

CPLR 3212 (b) permits summary judgment for a nonmoving party only on a cause of action or issue addressed by the motions before the court.

Schillaci v. Sarris · filed 2014-11-14(b)

Although CPLR 3212 (b) — cited by Supreme Court here — indeed permits a court to search the record and grant summary judgment to a nonmoving party, Supreme Court’s authority in this regard extends “only . . . to a cause of action or issue that is the subject of the motions before the court” (Dunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996]; see Scott v Beth Israel Med. Ctr., Inc., 41 AD3d 222, 223-224 [2007]).

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party on an issue raised by the motion.

Miloslavskaya v. Gokhberg · filed 2015-03-04(b)

Accordingly, we award summary judgment to the defendants dismissing the amended complaint pursuant to our authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996]; cf. Blair v O’Donnell, 85 AD3d 954, 956-957 [2011]).

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

Stevens v. Payne · filed 2015-04-23(b)

Plaintiffs did not cross-move for relief against either defendant; however, the court may search the record and grant summary judgment to a nonmoving party (see CPLR 3212 [b]; Kasper v Town of Smithtown, 123 AD2d 743 [1986] [granting summary judgment dismissing an affirmative defense to a nonmoving plaintiff upon denial of defendant’s motion for summary judgment based on that affirmative defense]). Accordingly, plaintiffs shall be granted summary judgment dismissing Payne’s affirmative defense of release.

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

Jones v. Castlerick, LLC · filed 2015-05-07(b)

Supreme Court erred in granting partial summary judgment to plaintiffs against Castlerick and then determining damages as a matter of law. A court has the authority to search the record and grant summary judgment to a nonmoving party (see CPLR 3212 [b]; Schillaci v Sarris, 122 AD3d 1085, 1088 [2014]).

Section 3212(b) requires the party opposing summary judgment to show a material question of fact that requires a trial.

Galil Kineret LLC v. Jung Wor Chin · filed 2015-08-04(b)

To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226 [1st Dept 2006]; see Hoover v New Holland N. Am., Inc., 23 NY3d 41, 56 [2014]).

Section 3212(b) permits a court to grant summary judgment to a nonmoving party on another party’s motion.

Deutsche Bank National Trust Co. v. Tanibajeva · filed 2015-10-06(b)

There was no procedural bar to the motion court’s granting summary judgment to defendant, which did not move for that relief, on plaintiff’s motion for summary judgment (CPLR 3212 [b]; McDougal v Apple Bank for Sav., 200 AD2d 418, 419 [1st Dept 1994]).

Section 3212(b) gives a summary judgment movant notice that the court may consider granting judgment to the opposing party; no further notice is required.

Kenneths Fine Repairs, LLC v. State · filed 2015-11-25(b)

CPLR 3212 (b) provided claimant with notice that its motion for summary judgment would empower the court to consider whether judgment as a matter of law in favor of defendant was warranted, and the statute requires no further notice to claimant.

Section 3212(b) permits a court to award summary judgment to a nonmoving party entitled to it without a cross-motion.

300 East 64th Street Partners, LLC v. Boissevain · filed 2016-03-15(b)

Based on the foregoing, petitioner’s motion for summary judgment is denied and pursuant to CPLR 3212 (b) respondent is awarded summary judgment and the petition is dismissed.

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party on an issue raised by the motion.

Bryant v. Loft Bookstore Café, LLC · filed 2016-04-06(b)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212 [b]).

Once a summary judgment movant makes a prima facie showing, the opposing party must submit proof raising a genuine question of fact or supporting an affirmative defense.

Wells Fargo Bank, N.A. v. Burke · filed 2016-05-25

It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiffs prima facie showing or in support of the affirmative defenses asserted in their answer or otherwise available to them (see Jessabell Realty Corp. v Gonzales, 117 AD3d 908 [2014]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]).

Under CPLR 3212(b), counsel’s affirmation alone is insufficient to raise a triable issue of fact in opposition to summary judgment.

Bentick v. Gatchalian · filed 2017-02-15(b)

Counsel’s affirmation, standing alone, was insufficient to raise a triable issue of fact (see CPLR 3212 [b]; Roche v Hearst Corp., 53 NY2d 767, 769 [1981]; Gallo v Jairath, 122 AD3d 795, 797 [2014]).

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party when no triable issue of fact remains.

St. Denis v. Queensbury Baybridge Homeowners Assn., Inc. · filed 2017-05-04(b)

To that end, in light of the absence of any triable issue of fact and inasmuch as we are empowered to search the record and award summary judgment to a nonmoving or nonappealing party (see CPLR 3212 [b]; Matter of Shambo, 138 AD3d 1215, 1216 [2016]), we grant summary judgment to defendant on plaintiff’s first cause of action.

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party when the record establishes that party's entitlement as a matter of law.

Erie Insurance Exchange v. J.M. Pereira & Sons, Inc. · filed 2017-06-30(b)

JMP, as a nonmoving, nonappealing party, contends that we should exercise our power to search the record and award it summary judgment ( see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard , 61 NY2d 106, 110-111). We decline to do so. The mere fact that plaintiff did not establish as a matter of law that Exclusion G precludes coverage does not, in our view, establish as a matter of law that the BCL policy provides such coverage.

Section 3212(b) permits a court to award summary judgment to a party other than the movant when that party's entitlement sufficiently appears.

K.O. Med., P.C. v. Mercury Cas. Co. · filed 2017-11-17(b)

As the Supreme Court's order bars any subsequent proceeding between the parties in the Civil Court under the doctrine of res judicata ... it sufficiently appears that a party other than plaintiff is entitled to summary judgment ( see CPLR 3212 [b]).

Section 3212(b) allows a court to search the record and grant summary judgment to a nonmoving party on an issue raised by the motion.

Liberty Equity Restoration Corp. v. Pil Soung Park · filed 2018-04-04(b)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court ( see CPLR 3212[b]; Arista Real Estate Holdings, Inc. v Kemalettin, 133 AD3d 696, 697-698). Since Frank LoPriore's deposition testimony conclusively establishes that Liberty Equity failed to perform its obligations under the parties' agreements, we search the record and award summary judgment to the defendant dismissing Liberty Equity's complaint alleging breach of contract and seeking specific performance.

Section 3212(b) permits an appellate court to search the record and award summary judgment to a nonmoving party on an issue raised by the motion.

Shea v. New York City Economic Dev. Corp. · filed 2018-05-02(b)

Further, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court ( see CPLR 3212[b]; Dunham v Hilco Constr. Co. , 89 NY2d 425, 429; Merritt Hill Vineyards v Windy Hgts. Vineyard , 61 NY2d 106, 110). In light of our determination, upon searching the record here, we award summary judgment to EDC dismissing the cause of action alleging a violation of General Municipal Law § 205-a insofar as asserted against it.

CPLR 3212(b) permits summary judgment for a nonmoving party on issues raised by the motion.

Matter of Davidovich v. Hoppenstein · filed 2018-06-14(b)

Having found that the transfer was valid, the Surrogate properly denied objectants' motion for summary judgment on their first three prayers for relief and sua sponte granted summary judgment to petitioners on those demands ( see CPLR 3212[b]). ... This is not a situation like Dunham v Hilco Constr. Co. (89 NY2d 425 [1996]), where summary judgment was granted to a nonmovant on an issue (the negligence of an employee) that was completely different from that on which summary judgment was granted to the movants (the duty to maintain a safe workplace).

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

Matter of Weikel v. Town of W. Turin · filed 2018-06-29(b)

Furthermore, although defendants did not cross-move for summary judgment dismissing as time-barred plaintiff's second cause of action to the extent that it seeks a declaration that the Local Law is invalid, we search the record and grant summary judgment to defendants dismissing the second cause of action to that extent where, as here, the affirmative defense was "the subject of the motion[] before the court" ( Dunham v Hilco Constr. Co. , 89 NY2d 425, 430 [1996]; see CPLR 3212 [b]; Delaine v Finger Lakes Fire & Cas. Co. , 23 AD3d 1143, 1144 [4th Dept 2005]).

CPLR 3212(b) permits summary judgment for a nonmoving party after searching the record, but the court must consider whether the moving party's papers establish a cause of action despite pleading defects.

Village of Sharon Springs v. Barr · filed 2018-10-18(b)

To the extent that Supreme Court's actions constituted an award of summary judgment to defendant, the nonmoving party, after searching the record ( see CPLR 3212 [b]), that relief was inappropriate in the absence of any consideration as to whether plaintiff, "despite defects in pleading, ha[d] . . . made out a cause of action" in its motion papers ( Alvord & Swift v Muller Constr. Co. , 46 NY2d 276, 279 [1978]; see Lindquist v County of Schoharie , 126 AD3d 1096, 1097 [2015]; Reiser, Inc. v Roberts Real Estate , 292 AD2d 726, 727 [2002]).

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

Digesare Mech., Inc. v. U.W. Marx, Inc. · filed 2019-10-24(b)

As for plaintiff's claim against Liberty Mutual, Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party ( see CPLR 3212 [b]; Matter of Shambo , 138 AD3d 1215, 1216 [2016]).

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

Hidden Ridge at Kutsher's Country Club Home Owners Assn., Inc. v. Levine · filed 2020-05-21(b)

Plaintiff opposed the motion and also requested that Supreme Court search the record and grant it summary judgment on its cause of action for the unpaid assessments. ... Contrary to defendants' assertion, plaintiff was entitled to summary judgment on its cause of action for unpaid assessments ( see CPLR 3212 [b]).

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

Prospect Funding Holdings, LLC v. Paiz · filed 2020-05-21(b)

In view of the foregoing, the court properly granted summary judgment to the Norinsberg Defendants dismissing the action (CPLR 3212[b]; Merritt Hill Vineyards v Windy Hgts. Vineyard , 61 NY2d 106, 110 [1984]).

CPLR 3212(b) permits a court to grant summary judgment to the party opposing the motion when the record warrants it.

Wells Fargo Bank, N.A. v. Budram · filed 2020-11-05(b)

Inasmuch as plaintiff's mortgage interest was extinguished upon the conveyance of title to the City in fee simple absolute in 2014, the court properly denied plaintiff's motion for summary judgment and, pursuant to CPLR 3212 (b), granted summary judgment to defendants dismissing the mortgage foreclosure action.

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

Adams v. Margulis · filed 2021-02-11(b)

Under these circumstances, we exercise our power to "search the record and grant summary judgment to a nonmoving party," i.e., defendant ( JMD Holding Corp. v Congress Fin. Corp ., 4 NY3d 373, 385 [2005]; see CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425, 429 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard , 61 NY2d 106, 111 [1984]).

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

T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp. · filed 2021-05-12(b)

Moreover, we note that International had not made a cross motion for summary judgment dismissing the complaints insofar as asserted by T. Mina against it, nor did the court search the record and award summary judgment in favor of International ( see CPLR 3212[b]).

Section 3212 summary judgment procedure cannot be used to convert a motion for judgment on the pleadings made in a pre-CPLR action.

Ias Bicor Corp. v. Mezrahi · filed 1964-12-14

It was error to treat this motion for judgment on ... the pleadings (former Rules Civ. Prac., rule 112), made in a pre-CPLR action, as one for summary judgment under CPLR 3212.

Summary judgment is ordinarily denied when a key fact is peculiarly within the movant’s knowledge.

Lee v. YRM, Ltd. · filed 1994-05-02(f)

While ordinarily courts may not weigh the credibility of the affiants, where, as here, the key fact at issue is peculiarly within the movant’s knowledge, summary judgment is ordinarily denied (see, CPLR 3212 [f]; Kaufman v Lederle Labs., 169 AD2d 706; Krupp v Aetna Life & Cos. Co., 103 AD2d 252; Koen v Carl Co., 70 AD2d 695; Siegel, NY Prac §281, at 411 [2d ed]).

Section 3212(f) permits denial of summary judgment when evidence needed to resolve material issues is in the opposing party’s exclusive control.

American Home Assurance Co. v. Amerford International Corp. · filed 1994-01-18(f)

Those documents are apparently in the exclusive control of the defendant and their absence provides an additional ground for denying summary judgment (CPLR 3212 [f]; Simpson v Term Indus., 126 AD2d 484, 486).

CPLR 3212(f) permits denial of summary judgment when essential facts are exclusively within a defendant’s knowledge, but a plaintiff cannot rely on that ground when their own delay prevented discovery of those facts.

Stevens v. Hilmy · filed 1992-08-10(f)

Although a defendant’s application for summary judgment may be denied where a plaintiff establishes that facts essential to the opposition to the motion rest within the exclusive knowledge of a defendant (CPLR 3212 [f]), the plaintiffs may not invoke this argument on this appeal as to the defendant Dr. Jonathan Stein.

CPLR 3212(f) permits denial of summary judgment when essential facts may exist but cannot yet be stated, including facts sufficiently identified as being within the opposing party’s exclusive knowledge.

Liotta v. Power Test Petroleum Distributors, Inc. · filed 1992-01-27(f)

Pursuant to CPLR 3212 (f), a court may deny a motion for summary judgment if it appears "that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]; R.C.S. Farmers Mkts. Corp. v Great Am. Ins. Co., 56 NY2d 918, 920-921; Adelman v Island Holding Corp., 157 AD2d 637). We find that essential facts believed to exist peculiarly within the defendants’ knowledge, with respect to the business relationship between them, have been sufficiently described so as to preclude the granting of summary judgment at this juncture (see, Kostov v New York City Hous. Auth., 140 AD2d 586).

CPLR 3212(f) requires a party seeking to postpone summary judgment to show that facts essential to its opposition may exist but cannot yet be stated.

Pokoik v. Gittens · filed 1991-03-14(f)

Moreover, defendant did not show that "facts essential to justify opposition [to the cross-motion] may exist but cannot then be stated” (CPLR 3212 [f]).

Section 3212(f) does not justify a continuance when the facts a party seeks are available in public records.

Porter v. Callahan · filed 1986-12-31(f)

Plaintiffs reliance on CPLR 3212 (f) is unavailing. Plaintiffs statement that facts may exist but cannot now be stated is belied by facts commonly within public knowledge. Documents relating to construction and design of roadways are public documents required to be held by the State. Likewise, information as to weather conditions and snow removal, relevant to the accident, are also public documents available to plaintiff. Plaintiff has thus failed to support any justification for a continuance pursuant to CPLR 3212 (f).

Section 3212(b) allows summary judgment for a nonmoving party, but an award is premature when a material affirmative defense requires discovery.

C. H. Sanders Construction Co. v. Bankers Trust Co. · filed 1986-09-04(b)

Order of the Supreme Court, New York County (David H. Edwards, Jr., J.), entered September 13, 1985, which denied plaintiff’s motion for summary judgment and awarded summary judgment to defendant pursuant to CPLR 3212 (b), unanimously modified, on the law, with costs, the award of summary judgment in defendant’s favor is vacated, and, as modified, affirmed. ... Defendant, however, has not yet had an opportunity to conduct discovery in support of its defense and should be permitted to do so.

Subdivision (f) does not delay summary judgment for discovery when the opposing party shows no attempt to discover facts at variance with the movant’s claims.

Monteleone v. Incorporated Village of Floral Park · filed 1986-09-08(f)

We find no merit to the plaintiffs’ argument that summary judgment should have been denied pending discovery (see, CPLR 3212 [f]). There was no showing that the plaintiffs had made any attempt to discover facts at variance with the defendant county’s claims.

Section 3212 allows a party to move for summary judgment after issue is joined; pending discovery does not justify postponement under subdivision (f) without a showing that facts essential to opposition are needed.

Goldheart International Ltd. v. Vulcan Construction Corp. · filed 1986-11-20(a), (f)

The order, which precluded the parties from moving for summary judgment until completion of discovery, was in conflict with CPLR 3212 (a), which provides, "Any party may move for summary judgment in any action, after issue has been joined.” ... Thus, CPLR 3212 (f) did not afford a basis to adjourn the motion and preclude the other parties from moving for summary judgment until discovery had been concluded.

Section 3212(f) permits denial of summary judgment when facts essential to oppose the motion are within the movant’s exclusive knowledge and may be revealed through discovery.

Blue Bird Coach Lines, Inc. v. 107 Delaware Avenue, N. V., Inc. · filed 1986-12-19(f)

Where, as here, pertinent facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, and may be revealed through pretrial discovery, summary judgment should be denied (see, CPLR 3212 [f]; Mack v Gregory Mem. Hosp., 90 AD2d 969).

Section 3212 requires summary judgment when the opposing party raises no triable issue and fails to show that essential facts may exist but cannot yet be stated.

Manufacturers & Traders Trust Co. v. Murdevski · filed 1987-01-23

Since defendant failed to make a showing in his papers in opposition to the motion "that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]), and failed to raise a triable issue, Special Term was required to grant plaintiff’s motion (CPLR 3212 [b]).

CPLR 3212(f) requires a party opposing summary judgment to show that facts essential to its opposition may exist but cannot yet be stated.

Brecher v. Mutual Life Insurance · filed 1986-05-20(f)

The affidavits submitted by plaintiff failed to demonstrate that "facts essential to justify opposition may exist but cannot * * * be stated.” (CPLR 3212 [f].)

CPLR 3212(f) does not allow a party to defeat summary judgment by claiming ignorance of critical facts when that ignorance was avoidable.

Megginson v. Rose · filed 1986-06-23(f)

A party may not claim ignorance of critical facts necessary to defeat a motion for summary judgment where that ignorance was avoidable (see, CPLR 3212 [f]; Kenworthy v Town of Oyster Bay, 116 AD2d 628).

Section 3212(f) permits a court to defer summary judgment when a party needs discovery of facts held by the opposing party.

Lerner Organization, Inc. v. Claridge's Co. · filed 1986-03-04(f)

Although it seems improbable that One Hour deliberately defaulted in the payment of its rental obligations resulting in its eviction from the premises as part of a plan to permit Claridge to avoid paying a brokerage commission, and it further appears doubtful that there was a covert payment by Alaten of One Hour’s rental obligations under the original lease, we have concluded that the circumstances are marginally sufficient to entitle Lerner to discovery of facts that are entirely within the possession of the defendant before summary judgment may properly be entered dismissing the remaining part of its claim (CPLR 3212 [f]).

Section 3212(f) requires a party opposing summary judgment to show that essential facts may exist but cannot yet be stated; mere hope of finding evidence is insufficient.

Babcock v. Allan · filed 1985-11-15(f)

The plaintiffs submitted no proof in opposition and failed to show that "facts essential to justify opposition may exist but [could not] then be stated” (CPLR 3212 [f]).

CPLR 3212(f) requires a party seeking to defeat summary judgment because critical facts are unknown to show that its ignorance was unavoidable and that it made reasonable efforts to discover facts raising a triable issue.

Kenworthy v. Town of Oyster Bay · filed 1986-01-21(f)

A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that "the ignorance is unavoidable” (Overseas Reliance Tours & Travel Serv. v Serv. Co., 17 AD2d 578, 579) and that reasonable attempts were made to discover the facts which give rise to a triable issue.

CPLR 3212 (i) does not permit postponing a summary judgment decision based on speculation that further inquiry might uncover evidence.

Gateway State Bank v. Shangri-La Private Club for Women, Inc. · filed 1985-09-09(i)

To speculate that something might be caught on a fishing expedition provides no basis pursuant to CPLR 3212 (i) to postpone decision on the summary judgment motion (Auerbach v Bennett, 47 NY2d 619, 636).

CPLR 3212(f) does not warrant disclosure before summary judgment without a showing that it could support the asserted defense.

Limpar Realty Corp. v. Uswiss Realty Holding, Inc. · filed 1985-08-08(f)

Defendants’ contention that it is entitled to an opportunity for disclosure (CPLR 3212 [f]) is without merit. There is no showing that such disclosure would provide a basis for the asserted defense.

Section 3212(f) permits denial of a summary judgment motion as premature when facts needed to oppose it cannot yet be stated.

Shufelt v. Niagara Mohawk Power Corp. · filed 1985-06-20(f)

CPLR 3212 (f) recognizes that there may be circumstances where facts essential to justify opposition to a summary judgment motion may exist but cannot then be stated. ... Accordingly, third-party defendants’ motions are premature and should be denied.

Section 3212(f) allows a continuance for further disclosure on a summary judgment motion; the court denied the continuance after denying summary judgment.

Monroe v. Interlock Steel Co. · filed 1985-04-18(f)

Interlock, pursuant to CPLR 3212 (f), seeks a continuance of the summary judgment motion of Klaisler to permit further disclosure to show an assumed liability by Klaisler. ... Accordingly, the motion for summary judgment is, in all respects, denied. Having so found, a continuance on this motion to allow further discovery is denied.

Section 3212(f) permits the court to deny summary judgment so the opposing party can depose eyewitnesses it has had little opportunity to examine.

Pastoriza v. State · filed 1985-02-05(f)

In addition, it appears that the defendant State, although having some time to investigate the accident through its contractor, had little or no opportunity to examine or depose eyewitnesses, including Mulroy, identified by plaintiff. Although not raised by defendant below, it should have the opportunity to depose Mulroy and any other witnesses (see, CPLR 3212 [f]).

Section 3212(f) permits denial of summary judgment until discovery is complete when facts needed to oppose the motion lie peculiarly within the moving party’s knowledge.

Five Towns College v. Citibank · filed 1985-05-20(f)

It is well established that summary judgment will not be granted without an opportunity to complete discovery where, as here, the facts necessary to oppose the motion lie peculiarly within the knowledge of the moving party (see, CPLR 3212 [f]; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187,194; Nordlicht v Norton Simon, Inc., 70 AD2d 511; White v First Natl. Bank, 22 AD2d 973, 974; see also, Himan v King Bear Auto Serv. Centers, 62 AD2d 1010).

Section 3212(f) allows a party to obtain needed discovery before summary judgment, but does not prevent judgment on claims that cannot succeed as a matter of law.

Warwick Materials, Inc. v. J. K. Produce Farms, Inc. · filed 1985-06-10(f)

While we agree that plaintiff should be afforded an opportunity to depose the Kobylaskis {see, CPLR 3212 [f]), the court should have granted the motion with respect to the causes of action which could not succeed as a matter of law.

Section 3212(f) does not justify delaying summary judgment for discovery when the opposing party’s own voluntary inaction caused its lack of knowledge.

Moxon v. Barbour · filed 1984-12-24(f)

If facts “essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had” (CPLR 3212, subd [f]; see Zuckerman v City of New York, 49 NY2d 557; Behar v Ordover, 92 AD2d 557). However, Barbour should not be allowed to claim that facts cannot be stated where her own voluntary inaction is the cause of the lack of knowledge (see Johannsdottir v Kohn, 90 AD2d 842; Twining, Nemia & Hill v Read Mem. Hosp., 89 AD2d 432; Smith v Ferro, 86 AD2d 752; Silinsky v State-Wide Ins. Co., 30 AD2d 1).

Section 3212(f) permits a court to deny summary judgment while discovery needed to ascertain pertinent facts is pending, without prejudice to renewal after discovery.

Government Employees Insurance v. Desiderio · filed 1984-10-01(f)

In our opinion the motion of plaintiff was properly denied in view of the need for Josephine Desiderio to conduct discovery proceedings to ascertain the pertinent facts concerning the issues of coverage and disclaimer, and because of the fact that, as recited in the affirmation in opposition submitted by Josephine Desiderio’s attorney, such proceedings had been instituted by her and were pending at the time plaintiff moved for summary judgment (see CPLR 3212, subd [f]).

Section 3212(f) permits summary judgment before discovery when the opposing party gives no reason to believe discovery will produce evidence warranting a trial.

La Scala v. D'Angelo · filed 1984-10-15(f)

However, summary judgment should be granted before discovery if plaintiffs’ papers do not give any reason to believe that discovery would produce evidence of malice on the part of a defendant that would warrant a jury trial ... In the instant case, plaintiffs make conclusory allegations of malice which are based on nothing more than suspicion and surmise.

Section 3212(f) permits further disclosure before summary judgment when facts needed to oppose the motion are unavailable to the opposing party.

Presentation Technical Aids, Inc. v. Employers' Insurance of Wausau · filed 1984-11-13(f)

In the circumstances of this case, we think the interest of justice will be better served by giving plaintiff a further opportunity for disclosure proceedings designed to ascertain further facts not within its knowledge, which are not now available to it, to support its claim of estoppel.

Subdivision (f) allows a court to postpone summary judgment when an opposing affidavit shows that essential facts may exist but cannot yet be stated; speculation alone is insufficient.

Oates v. Marino · filed 1984-12-13(f)

It does not appear on this record “from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212, subd [f]; 3211, subd [d]).

Section 3212(f) does not require additional discovery before summary judgment when the opposing party waived discovery and neither requested it nor explained why it was needed to answer the motion.

Stephano v. News Group Publications, Inc. · filed 1984-12-20(f)

He never requested discovery in connection with the motion, or contended that discovery was necessary to respond to the facts alleged in the defendant’s affidavits (CPLR 3212, subd [f]). Under these circumstances it cannot be said, as a matter of law, that the plaintiff should be granted additional opportunities for discovery.

Section 3212(f) does not prevent summary judgment merely because an opposing party claims facts are unavailable when those facts are not exclusively known to the moving party.

Procter & Gamble Distributing Co. v. Lawrence American Field Warehousing Corp. · filed 1965-01-26(f)

Defendants attempt to excuse the failure to explain the nonexistence or disappearance of the oil on the ground that the facts are necessarily not available to it (see CPLR 3212, subd. [f]). ... This is not, however, the special situation where the applicable facts are peculiarly within the exclusive knowledge of the party seeking summary judgment (see Overseas Reliance Tours & Travel Serv. v. Sarne Co., 17 A D 2d 578).

Section 3212(f) cannot be invoked to seek an examination after the party seeking it has put the case on the calendar and waived that right.

Hubbell v. South Nassau Communities Hospital · filed 1965-05-17(f)

Plaintiffs seek to invoke CPLR 3212 (subd. [f]) but by putting the case on the calendar have waived their right to examine defendant.

Section 3212(f) permits denial of summary judgment when the facts supporting the motion are exclusively within the moving party’s knowledge or clearly outside the opponent’s knowledge.

Crocker-Citizens National Bank v. L. N. Magazine Distributors, Inc. · filed 1966-07-05(f)

Moreover, the rule is here applicable that summary judgment should not be granted if the facts upon which the motion is predicated are exclusively within the knowledge of the moving party or clearly not within the knowledge of the opponent (Franklin Nat. Bank v. De Giacomo, 20 A D 2d 797; cf. CPLR 3212, subd. [f]).

Section 3212(f) does not warrant discovery when the facts needed to establish the moving party’s rights are public record.

William Iselin & Co. v. Burgess & Leigh, Ltd. · filed 1967-01-10(f)

Therefore, respondents seek either a continuance or a denial of the instant motion, pending examinations before trial and discovery proceedings by them, pursuant to CPLR 3212 (subd. [f]). Discovery proceedings are inapplicable to the case at bar since the facts necessary to establish petitioner’s rights are a matter of public record.

A party opposing summary judgment cannot obtain a continuance for disclosure under CPLR 3212(f) when its own inaction left it without the evidence.

Silinsky v. State-Wide Insurance · filed 1968-04-22(f)

While it might be contended that such evidence is solely within the. knowledge of the plaintiff (or.the tort-feasors) and therefore the court should have denied the plaintiff’s motion or ordered a continuance to permit disclosure (CPLR 3212, subd. [f]), such contention may not be sustained ... The defendant never requested an order for disclosure and apparently took no other steps to discover the truth and thus it is too late for the defendant to inquire into the settlement question.

Section 3212(f) permits denial of summary judgment while a party obtains disclosure of potentially essential facts.

Rosenthal v. Manufacturers Hanover Trust Co. · filed 1968-06-11(f)

Although the plaintiff presents proof prima facie establishing its alleged cause of action, it appears that there may exist undisclosed essential facts hearing upon the merit thereof. For this reason, and in view of the incompleteness of the present record (only one of the subject checks with indorsements is before the court), we conclude that plaintiff’s motion for summary judgment should be denied in the interests of justice. In the circumstances of the case, the defendant should be afforded the opportunity of disclosure proceedings before renewal of the motion for summary judgment. (See CPLR 3212, subd. [f]).

Subdivision (f) permits further fact development before a summary judgment motion is decided when the interests of justice require it.

Brickman-Joy Corp. v. Tufano Contracting Corp. · filed 1968-07-15(f)

In our opinion the interests of justice require such further proceedings for the proper determination of the motions for summary judgment (CPLR 3212, subd. [f]).

CPLR 3212(f) allows an opposing party to obtain facts essential to its opposition through disclosure before summary judgment is decided.

Golden v. Wickhardt Co. · filed 1969-10-30(f)

Plaintiffs should be given an opportunity through disclosure to obtain facts essential to support their opposition to the motion for summary judgment.

Section 3212(f) permits denial of summary judgment until disclosure when critical facts are within a party’s exclusive knowledge.

Velardi v. Consolidated Edison Co. · filed 1970-03-19(f)

With respect to defendant’s counterclaim and plaintiffs’ fourth cause of action, it appears that this is a case where critical facts as to the billing and the correctness thereof are exclusively and peculiarly within the knowledge of one or the other of the parties. Under such circumstances, justice and proper procedure require denial of summary judgment as to these claims until full disclosure is obtained (see Overseas Tours & Travel Serv. v. Sarne Co., 17 A D 2d 578; CPLR 3212, subd. [f]).

Section 3212(f) allows a party to obtain discovery before summary judgment when facts essential to opposing the motion may exist.

Bingham v. Wells, Rich, Greene, Inc. · filed 1970-06-16(f)

Plaintiff has demonstrated that facts essential to justify opposition may exist and he should be afforded the opportunity to avail himself of disclosure devices (CPLR 3212, subd. [f ]).

Section 3212(f) permits a continuance of a summary judgment motion to obtain evidence for opposition, but a party who makes no such request cannot defeat the motion on a belief that disclosure will support conclusory allegations.

Payne v. Payne · filed 1970-06-30(f)

The statute (CPLR 3212, subd. [f]) authorizes the court to grant a continuance of a motion for summary judgment to permit the party moved against to obtain affidavits and disclosure to be used in opposition to the motion. No such request was here made. In her opposing affidavit plaintiff simply requested denial of the motion because of her “ belief ” that pretrial disclosure would corroborate her conclusory statements made in the pleading and the affidavit.

CPLR 3212(f) does not justify delaying summary judgment when the opposing party identifies no potentially obtainable admissible evidence.

Dwyer v. County of Nassau · filed 1971-05-26(f)

The answering affidavits set forth nothing, other than the suppressed and, therefore, inadmissible evidence, to suggest that other admissible evidence may be obtainable and thus bring the matter within CPLR 3212 (subd. [f]).

CPLR 3212(f) permits denial of summary judgment until depositions are taken when information needed to oppose the motion may be solely in the moving party’s possession.

Feibelmann v. Compagnie Nationale Air France · filed 1972-07-05(f)

The defendant is entitled to take the plaintiffs’ depositions; and as the information concerning the accident may be in the sole possession of the plaintiffs, the motion for judgment should be denied, at least until depositions are had (CPLR 3212, subd. f).

CPLR 3212 permits a summary judgment motion in a matrimonial action before an answer when the defense rests on documentary evidence or official records.

Roth v. Roth · filed 1973-06-04(a), (d)

However, under subdivisions (a) and (d) of CPLR 3212 matrimonial actions may be excepted from the requirement of prior issue joinder where a defense exists based on documentary evidence or official records.

Section 3212(f) permits denial of summary judgment pending discovery when facts needed to oppose the motion are within the moving party’s knowledge.

B.V.D. Co. v. Marine Midland Bank-New York · filed 1974-11-19(f)

While the pleading of this knowledge by the bank is inept, sufficient is shown to defeat summary judgment. As what the bank knew is peculiarly a fact within its own competence, a showing of facts which might lead to that conclusion is sufficient to raise an issue at this time. After a reasonable time for discovery proceedings the bank may, if so advised, renew its motion (CPLR 3212, subd. [f]).

Section 3212(f) permits denial of summary judgment when opposing affidavits show that facts needed to oppose the motion may exist but cannot yet be stated.

Volkman v. Miller · filed 1976-05-13(f)

In order to deny the motion on that ground, it must appear from the affidavits in opposition that such facts may exist but cannot then be stated (CPLR 3212, subd [f]).

Section 3212(f) excuses a party’s failure to present proof opposing summary judgment when relevant information is peculiarly within the opposing party’s knowledge, despite delays in investigation.

Aetna Casualty & Surety Co. v. First National City Bank · filed 1976-06-10(f)

While it is true that First National City Bank has not proceeded with alacrity in its investigation and utilization of discovery proceedings, it nonetheless appears that the relevant information sought is peculiarly within the knowledge of Aetna, and First National City Bank’s failure to bare its proof is therefore excused (CPLR 3212, subd [f]).

CPLR 3212(f) permits withholding summary judgment when essential opposing facts may exist but cannot yet be stated; a bare allegation that such facts exist is insufficient.

Shaffer v. Hirsch · filed 1976-05-11(f)

Plaintiff relied instead on CPLR 3212 (subd [f]), which precludes the granting of summary judgment when "facts essential to justify opposition may exist but cannot then be stated”. The "facts” alluded to included documents in a related Federal action now pending, indicating that defendants knew or should have known of the fraud. However, in this case, that bare allegation is insufficient to bar summary judgment in favor of the defendant.

A party opposing summary judgment must present evidence showing that the allegations in the complaint can be established at trial.

Johler v. Consolidated Laundries Corp. · filed 1976-10-12

Thus, plaintiff in opposing summary judgment was required to reveal his proofs in order to show that matters set up in his complaint are real and can be established upon a trial (see Di Sabato v Soffes, 9 AD2d 297). This, plaintiff failed to do.

Section 3212(f) does not justify delaying summary judgment for discovery when the opposing party had time to seek discovery but took no steps to do so.

Lerner Stores Corp. v. Parklane Hosiery Co. · filed 1976-11-05(f)

Furthermore, we find no merit in defendant’s contention that summary judgment should have been denied pending discovery (see CPLR 3212, subd [f]). Although many of the material facts necessary to support defendant’s allegations were within the knowledge of plaintiff and other parties, in the six-month period between service of the amended complaint and service of the affidavits opposing the motion, defendant took no affirmative step to seek discovery.

CPLR 3212(f) permits denial of summary judgment when a party needs to explore facts that may reveal a triable issue.

Bernardo v. P. J. Carlin Construction Co. · filed 1977-06-27(f)

A review of the record on this appeal indicates that there may be a triable issue of fact as to whether Isaacson Steel Erectors, Inc., the bankrupt herein, was hired directly by Carlin and Atlas, an issue which the trustee in bankruptcy should be permitted to explore (see CPLR 3212, subd [f]).

Section 3212 permits a court to deny summary judgment when discovery is needed to determine what defenses may be available.

Hudleasco, Inc. v. State · filed 1977-07-19

Therefore, while it may be that the Secretary of State was negligent, we cannot, on the papers before us ascertain what defenses, if any, may be available to the defendant and cannot order entry of summary judgment.

Section 3212(f) permits denial of summary judgment when possible defenses depend on evidence the opposing party does not yet possess.

Hudleasco, Inc. v. State · filed 1978-06-01(f)

The State no longer presses its argument based on sovereign immunity and, turning to claimant’s cross appeal, we agree with the Court of Claims that the existence of possible defenses which depend on evidence not presently in the possession of the State would preclude summary relief in claimant’s favor (CPLR 3212, subd [f]; Simpson Box & Lbr. Co. v Crilly, 31 AD2d 727; Moskowitz v Garloek, 23 AD2d 943; see Kagan v United States Life Ins. Co., 21 AD2d 846).

Subdivision (f) permits denial of partial summary judgment when facts needed to oppose the motion may be in the moving party’s exclusive knowledge.

Slayton-Paltrow, Inc. v. Niles · filed 1978-01-30(f)

The defendant’s affidavits in support of his motion for partial summary judgment dismissing the second cause of action rely on the details of a complex real estate transaction or series of transactions in which the plaintiff was represented by the defendant attorney; therefore the facts may be in the defendant’s exclusive knowledge (see CPLR 3212, subd [f]). ... On this record, the grant of partial summary judgment dismissing the second cause of action would not be justified.

A party moving for summary judgment must establish a right to relief as a matter of law.

Hotaling v. Smith · filed 1978-07-13

The appellants have simply failed to establish a right to summary judgment as a matter of law because they failed to establish that the pertinent foreign law would require a dismissal of the complaint and cross claim as to them.

Section 3212(f) permits denial of summary judgment without prejudice when material facts are within the moving party’s knowledge and the opposing party has not had a reasonable opportunity for discovery.

Udoff v. Zipf · filed 1978-03-29(f)

On the present state of the record, the motion for summary judgment dismissing the first cause of action should therefore be denied, without prejudice to the right of defendants, if they be so advised, to renew the motion after plaintiff has been afforded reasonable opportunity for pretrial discovery (CPLR 3212, subd [f]).

Section 3212 permits denial of summary judgment as premature when the plaintiff has not yet had discovery needed to identify the defendants’ products.

McKee v. Johns Manville Corp. · filed 1978-04-27

To date the defendants have had a deposition before trial of the plaintiff and of his treating physician, Dr. Howard Paul Longstreth, while plaintiff as yet, has not had any discovery proceedings. Therefore, defendant Fibreboard Paper Products Corporation’s motion to dismiss because of plaintiff’s failure during his oral deposition to specifically identify Fibreboard as a manufacturer of any asbestos-containing product he may have handled, and defendant Armstrong Cork Company’s similar motion in relation to its product called "Armaspray” and "L. T. Cork Covering” are premature. They are denied without prejudice to being renewed when plaintiff’s discovery proceedings are concluded.

Section 3212(f) allows a party to pursue discovery into a possible factual basis for opposing summary judgment.

Germano v. Benjamin · filed 1978-08-07(f)

Finally, the fact that defendant paid the inspector who had been inadvertently ordered by plaintiffs’ attorney, and the uncommon efficiency with which defendant’s attorney repudiated the contract after that inspection, raise the possibility that defendant failed to act in good faith. Plaintiffs should have the opportunity to explore this possibility in discovery proceedings (see CPLR 3212, subd [f]).

CPLR 3212(f) permits discovery before summary judgment when facts needed to oppose the motion are unavailable to the opposing party.

Federal Deposit Insurance v. Hyer · filed 1979-03-05(f)

Contrary to the position taken on appeal by defendants, this is not a case where discovery was necessary because facts needed to oppose the motion were unavailable to them (see CPLR 3212, subd [f]; see, also, 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.18).

Section 3212(f) permits a court to continue a summary judgment motion so the opposing party can obtain facts needed to respond through disclosure.

Torres v. County of Erie · filed 1978-09-22(f)

The motions for summary judgment are continued pursuant to CPLR 3212 (subd [f]) until December 15, 1978 in order to permit plaintiff to develop through disclosure facts in opposition to defendants’ motions which Special Term shall then determine.

CPLR 3212(f) permits denial of summary judgment without prejudice to renewal when further discovery is needed to address a factual defense.

Trump v. Saidenberg · filed 1978-11-14(f)

We have concluded that enough is presented to require denial of summary judgment at this time without prejudice to renewal after plaintiff has had an opportunity to pursue discovery. (See CPLR 3212, subd [f].)

Section 3212(f) permits a court to deny summary judgment as premature when a party needs discovery to obtain evidence relevant to the motion.

Laura Accessories, Inc. v. Travelers Insurance · filed 1979-01-16(f)

Because plaintiff should have an opportunity to obtain discovery and examine defendant’s witnesses to ascertain the intended risk (CPLR 3212, subd [f]) the grant of summary judgment was, in any event, premature.

Section 3212(f) permits denial of summary judgment when facts needed to oppose the motion are exclusively within the moving parties’ knowledge.

Applied Hydro-Pneumatics, Inc. v. Bauer Manufacturing, Inc. · filed 1979-05-07(f)

So much of the order appealed from as denied the cross motion for summary judgment was also properly decided, as the facts concerning the bona ñdes of the transfer of BMI’s assets are exclusively within the defendants’ knowledge at this stage of the proceedings (see CPLR 3212, subd [f]), and a question of fact exists as to whether Bauer/Electro ratified or adopted the agreement to pay commissions to AHP by virtue of its performance of the contracts procured by the former for BMI.

Section 3212(f) permits denial of summary judgment when facts essential to oppose the motion may exist but cannot yet be presented because disclosure has not occurred.

Rinaldi v. Viking Penguin, Inc. · filed 1979-06-25(f)

On the papers submitted, the plaintiff has demonstrated that some facts essential to resist the motion for summary judgment may exist but are not producible since he has not had an opportunity for disclosure. Accordingly, denial of the motions would be required, in any event, by CPLR 3212 (subd [f]).

Section 3212 does not permit summary judgment dismissing a shareholder derivative action before the plaintiff has had a reasonable opportunity to investigate the board’s decision through discovery.

Byers v. Baxter · filed 1979-06-26

The Court of Appeals has warned us against the grant of summary judgment in dismissing stockholders’ derivative actions before plaintiff has been afforded reasonable opportunity for pretrial discovery. ... We think that plaintiff should be given a reasonable opportunity for disclosure proceedings as to the validity and propriety of the board of directors’ resolution in determining to terminate this action.

Section 3212(f) permits denial of summary judgment pending discovery when facts relevant to the opposition are in the moving party’s possession.

Bank Leumi Trust Co. v. Felner · filed 1979-06-28(f)

However, it is apparent that the relevant information bearing on these possible issues is entirely in the possession of the plaintiff, and that defendants’ opportunity to learn the facts was unduly limited by the failure of plaintiff’s officer to bring to the examination before trial pertinent bank records as well as by his lack of knowledge concerning aspects of plaintiff’s transactions with Titan. Accordingly, defendants are entitled to the further discovery for which they moved as to all of the notes sued upon, and summary judgment should be denied without prejudice to renewal following the completion of that discovery. (See CPLR 3212, subd [f].)

Section 3212(f) does not require postponing summary judgment for speculative discovery when the opponent has not shown that disclosure may yield essential facts.

Auerbach v. Bennett · filed 1979-07-09(f)

To speculate that something might be caught on a fishing expedition provides no basis to postpone decision on the summary judgment motions under the authority of CPLR 3212 (subd [fl).

Section 3212 precludes summary judgment when the opposing papers raise a factual issue, and a motion may be premature before relevant disclosure is completed.

Baccari v. De Santi · filed 1979-09-17

It is our opinion that the answer and opposing papers of defendants County Clerk and the County of Westchester raise a question of fact on the issue of actual knowledge sufficient to preclude an award of summary judgment against those defendants. At the very least it was premature to grant that motion against defendants County Clerk and the County of Westchester before they had the opportunity which they sought to depose Nicholas Baccari’s former attorney.

Section 3212(f) permits disclosure needed to oppose summary judgment even after a case is placed on the trial calendar.

Connell v. City of New York · filed 1979-12-07(f)

Nothing in the authorities cited by defendants requires denial of CPLR 3212 (subd [f]) disclosure after a case is calendared.

Section 3212(f) permits denial of summary judgment when pretrial discovery might reveal facts essential to the parties' positions.

Benjamin Center v. Hampton Affiliates, Inc. · filed 1980-03-17(f)

Special Term properly denied both the motion and the cross motion for summary judgment, since it appears that pretrial discovery might reveal the existence of facts essential to the positions of the respective parties (see CPLR 3212, subd [f]).

Subdivision (f) requires a party seeking to delay summary judgment for discovery to show that material facts remain unavailable and could be discovered.

Global Casting Industries, Inc. v. Daley-Hodkin Corp. · filed 1980-09-17(f)

Finally, plaintiff’s cross motion for an examination before trial of the defendant and to delay this motion until after said examination, is without merit. The plaintiff has submitted no reasons in support of such'a request. There has been no showing that there are material facts to be discovered which are unavailable to plaintiff (see CPLR 3212, subd [f]).

Section 3212(f) permits a court to deny or defer summary judgment for discovery when the opposing party identifies essential facts that may exist but cannot yet be stated.

Billy v. Consolidated Machine Tool Corp. · filed 1980-10-21(f)

While it is true that CPLR 3212 (subd [f]) authorizes the court to deny summary judgment or grant a continuance pending discovery ... we cannot conclude that such action would be warranted here, since plaintiff has given no indication as to what "essential” facts she believes exist that would justify a denial of Emhart’s motion to dismiss her complaint.

CPLR 3212(f) permits denial of summary judgment when facts needed to oppose the motion are within the defendants’ knowledge and may be obtained through discovery.

Barnett v. Barnett · filed 1980-12-11(f)

Although such information is solely within the knowledge of the defendants, it may be obtained by proper discovery proceedings. This being so, and viewing the facts in a light most favorable to plaintiff, summary judgment as to these defendants was improperly granted (see Gale-Oppenheimer v Weinstein, 36 AD2d 536; CPLR 3212, subd [f]).

Section 3212(f) permits discovery before a summary judgment motion is decided when facts relevant to the motion remain to be developed.

Lefkowitz v. Napatco, Inc. · filed 1980-12-18(f)

The structure of defendant’s arrangements with its attorney-clients is, therefore, a proper subject of discovery which the Attorney-General should be permitted to complete before any further summary judgment application is made by defendant (CPLR 3212, subd [f]).

Subdivision (f) allows a party that lacks information needed to oppose summary judgment to raise that lack of information in its opposition.

Chisholm-Ryder Co. v. Sommer & Sommer · filed 1980-12-23(f)

If it lacked information to tender the defense, it could have pleaded that fact in opposition to the motion for summary judgment (see CPLR 3212, subd [f ]).

Section 3212(f) permits denial of summary judgment while relevant discovery remains outstanding.

Rinaldi v. Viking Penguin, Inc. · filed 1981-04-07(f)

The plaintiff, respondent on the publisher’s appeal, accurately noting that it had not delayed its demand for discovery, particularly with respect to the issue of malice, requests that the publisher’s motion for summary judgment be “denied in any event under CPLR 3212 (f)”, which permits denial in contemplation of discovery. This comports with the thinking of the Appellate Division, and we see no reason to disturb it.

Section 3212(f) permits discovery when facts needed to oppose summary judgment are within the other party’s knowledge, but a party cannot rely on that circumstance after failing to use the available discovery procedures.

Roche v. Hearst Corp. · filed 1981-04-07(f)

Finally, plaintiff’s argument that summary judgment should be denied because all the facts as to malice were within the knowledge of the defendants is equally lacking in merit. While CPLR 3212 (subd [f]) authorizes discovery in such circumstances, the record does not demonstrate that plaintiff availed himself of such procedures during the three years that elapsed between commencement of the action and the making of the summary judgment motion (see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.18, pp 32-194 to 32-195).

A court may defer summary judgment to allow previously ordered depositions and permit the movant to renew its motion afterward.

Turbin v. Metropolitan Transportation Authority · filed 1981-04-16

Let it be clearly understood that this direction is not by way of sanction, but rather to afford the plaintiffs the opportunity, heretofore granted to them, to elicit facts to establish their cause of action. The defendant County is given leave to renew this motion at the conclusion of the said depositions.

Section 3212(f) permits the court to defer summary judgment when facts relevant to a defense may be unavailable to the opposing party until discovery.

Chase Manhattan Bank, N.A. v. Cannon · filed 1981-04-28(f)

The record suggests the possibility that there may be facts within the possession of the plaintiff, and not presently available to the defendants, that would be relevant to defenses interposed by defendants, particularly the claim that the notes sued upon were discharged by an executed accord and satisfaction. Accordingly, we have concluded that these issues should not be finally determined until after defendant has had an opportunity for discovery. (See CPLR 3212, subd [f].)