N.Y. C.P.L.R. § 3212

CPLR 3212(f) requires an affidavit indicating that facts essential to oppose summary judgment may exist before the court grants a request for disclosure.

Citibank, N.A. v. Furlong · filed 1981-05-26(f)

Such allegations do not support defendant Furlong’s request for disclosure pursuant to CPLR 3212 (subd [f]). Defendant’s affidavit does not indicate that “facts essential to justify opposition [to the motion] may exist”. As such, the affidavit fails to comply with the requirements of that section.

Section 3212(f) does not require a plaintiff to identify potential evidence with the usual specificity when the evidence is almost entirely in the defendants’ possession and cannot reasonably be described before discovery.

Parkoff v. General Telephone & Electronics Corp. · filed 1981-06-18(f)

Nor can that opposition be dismissed in this case, as it might in many cases, because the essential facts anticipated to be discovered were not identified with particularity (cf. CPLR 3212, subd [f]). Inasmuch as almost all possible evidentiary data with respect to the areas of permissible inquiry were within the exclusive possession of defendants and, by reason of their nature, could be described with any degree of specificity only by resort to imaginative speculation, it would be unreasonable to hold plaintiff in cases such as this to the customary requirement that he show that facts essential to the defeat of the motion may exist although they cannot be stated.

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

Rueda v. Daval Variety, Inc. · filed 1981-12-21(f)

We note further that no affidavit was presented from Gindi’s brother or from the two employees of JH allegedly in the store at the time in question; that Thomas Rueda is dead; that his widow (the plaintiff) was not present at the time of the shooting (see CPLR 3212, subd [f], entitled “Facts unavailable to opposing party”); that plaintiff was not a party to the criminal trial and thus could not cross-examine Gindi thereat; and that the appellant’s insurance company twice moved to disclaim and to withdraw its representation. ... It is manifest that knowledge of the events bearing on liability does lie exclusively with the defendants, and that even on JH’s moving papers there are issues of fact and ambiguities, the resolution of which require discovery proceedings or trial.

Section 3212(f) permits pretrial disclosure when resolving an issue may depend on facts held by another party.

Sancetta v. Notey · filed 1982-01-18(f)

However, as a resolution of this issue may depend on facts solely within the knowledge of the corporation, defendant Notey is entitled to conduct pretrial disclosure proceedings prior to the trial (see CPLR 3212, subd [f]).

Section 3212(f) permits a court to deny summary judgment when essential facts cannot yet be stated, but a party cannot rely on its own failure to pursue discovery.

Smith v. Ferro · filed 1982-01-22(f)

While CPLR 3212 (subd [f]) gives Special Term the discretion to deny a motion for summary judgment if “facts essential to justify opposition may exist but cannot then be stated”, a party “may not claim that ‘facts cannot be stated’ when its lack of knowledge results from its own voluntary inaction (Silinsky v State-Wide Ins. Co., 30 AD2d 1; see, also, Payne v Payne, 34 AD2d 375).” (Lerner Stores Corp. v Parklane Hosiery Co., 54 AD2d 1072, 1073; see English Wholesale Grocery Co. v Plaza Super of Malta, 73 AD2d 759; Tausig & Son v Providence Washington Ins. Co., 28 AD2d 279, affd on opn below 21 NY2d 1022.)

Section 3212(f) permits denial of summary judgment before disclosure when material facts are unavailable to the opposing party and lie with the movant.

Colonna & Co. v. Citibank, N. A. · filed 1982-02-02(f)

All of these are facts unavailable to the defendant and essentially available only to plaintiff. Such considerations make it unsafe to grant summary judgment, at least before full disclosure proceedings.

CPLR 3212(f) does not justify further discovery before summary judgment when the facts sought are remote and speculative.

Hewett v. Marine Midland Bank of Southeastern New York, N.A. · filed 1982-04-26(f)

The Fund’s argument that it should be permitted to have discovery to determine whether the amount indorsed to the Fund was in fact an unpaid residue must be rejected because, given the language of the instrument, such a possibility is remote. (See CPLR 3212, subd [f].) ... Mere speculation that some improbable remote circumstances may exist should not defeat summary judgment.

Section 3212 does not permit summary judgment when the salient facts supporting the motion are known only to the moving party.

Santorio v. Diaz · filed 1982-02-18

Summary judgment is unavailable when, as here, the salient facts underlying the motion are solely within the knowledge of the moving party ... Instead, the movant’s version should be subjected to cross-examination at trial (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:19, pp 438-439).

CPLR 3212(f) does not justify withholding summary judgment when the opposing party has access to the facts it claims are exclusively known to the movant.

Long Island Ophthalmologic Associates v. West Broadway Professional Building, Inc. · filed 1982-05-03(f)

Furthermore, we do not agree with defendant’s contention that the facts surrounding plaintiff’s use of electricity are within the exclusive knowledge of plaintiff so as to give rise to the application of CPLR 3212 (subd [f]). Rather it would be defendant, which receives and pays the electric bills, which would be privy to such information.

Section 3212(f) does not require an opposing party to specifically request its protection.

R.C.S. Farmers Markets Corp. v. Great American Insurance · filed 1982-06-15(f)

That subdivision does not require a specific request for its implementation.

Under CPLR 3212(f), a court may decline summary judgment before disclosure when the opposing party shows that facts needed to oppose the motion may exist.

Hand v. Krakowski · filed 1982-07-08(f)

Since the motion was made prior to any disclosure being conducted and the affirmation of plaintiff’s attorney attests that the requisite opposing facts may exist (see Siegel, New York Practice, § 281, p 339), we decline to affirm the order of Special Term on ... the basis of plaintiff’s failure to make a sufficient evidentiary showing (see CPLR 3212, subd [f]).

Section 3212(f) permits a continuance for additional affidavits and disclosure, but a party that withholds essential facts already in its possession is not entitled to its full protection.

R. C. S. Farmers Markets Corp. v. Great American Insurance · filed 1982-09-23(f)

Having failed to lay bare essential facts in its possession, defendant is not entitled to the full benefit of CPLR 3212 (subd [f]). ... Under these circumstances, defendant should be granted a continuance for the purpose of submitting additional affidavits establishing the scope and results of its investigation into the origin of the fire and to permit defendant to have disclosure concerning Police Sergeant Luedeke’s investigation (CPLR 3212, subd [f]).

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

Fisher v. Kavoussi · filed 1982-10-14(f)

Finally, Special Term did not abuse its discretion by denying summary judgment, at least in part, pursuant to CPLR 3212 (subd [f]) (R.C.S. Farmers Markets Corp. v Great Amer. Ins. Co., supra, pp 920-921). The relationship between defendants, including communications between them as to the floor condition and the appointment for the inspection, presented a matter exclusively within their own knowledge (see Franklin Nat. Bank of Long Is. v De Giacomo, 20 AD2d 797).

Section 3212(f) permits discovery before summary judgment is decided when the opposing party needs records to substantiate factual allegations.

Piccolo v. De Carlo · filed 1982-10-14(f)

We cannot say that Special Term abused its discretion in affording defendant De Carlo the opportunity to conduct discovery proceedings pursuant to CPLR 3212 (subd [f]), wherein all of the records of plaintiffs’ corporations may be examined to determine whether any understatement of taxes due was made.

Subdivision (f) permits a court to deny or defer summary judgment when essential facts opposing the motion may exist but cannot yet be stated, allowing time for disclosure.

Boyer v. New York Property Insurance Underwriters Ass'n · filed 1982-11-18(f)

If indeed the notation was unilateral and the effective date was not disclosed to plaintiff for some months, we think this is a proper case for the application of CPLR 3212 (subd [f]), i.e., that where it appears “that 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 and may make such other order as may be just.” We think plaintiff should have a reasonable opportunity for disclosure proceedings before a motion for summary judgment is finally determined.

Section 3212(f) does not require a continuance for discovery when the party opposing summary judgment has failed through its own inaction to ascertain the facts needed for its defense.

Twining, Nemia & Hill v. Read Memorial Hospital, Inc. · filed 1982-11-24(f)

Defendant also urges that the court should have granted a continuance pursuant to CPLR 3212 (subd [f]) so as to provide it with the opportunity to discover any favorable evidence in plaintiff’s possession. Where the party opposing a motion for summary judgment claims that a defense depends upon knowledge in the possession of the moving party, the motion will still be granted if the party opposing the motion has failed to ascertain the facts due to its own voluntary inaction (Silinsky v State-Wide Ins. Co., 30 AD2d 1). In the present case, there are no allegations as to the steps taken by defendant to ascertain the relevant facts nor did defendant seek a continuance to permit disclosure before Special Term. Consequently, we are of the opinion that the plaintiff’s motion for summary judgment was properly granted (see Lewis v I.K.E. Realty Assoc., 81 AD2d 711).

Subdivision (f) allows a court to deny summary judgment or permit disclosure when the opposing party shows that facts essential to its opposition may exist but cannot yet be stated.

Johannsdottir v. Kohn · filed 1982-11-29(f)

It is the rule that if it appears from the affidavits of the party opposing a motion for summary judgment “that facts essential to justify opposition may exist but cannot then be stated”, the court may, in its discretion, deny the motion or “may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just” (CPLR 3212, subd [f]).

Section 3212(f) permits a court to deny summary judgment for further discovery when the opposing affidavits suggest that essential facts may be uncovered.

Harris v. Alcan Aluminum Corp. · filed 1982-12-17(f)

Although Special Term is empowered to deny a summary judgment motion if it appears “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]), this power should not be exercised unless plaintiff’s papers suggest that further discovery “would produce evidence of malice on the part of I the] defendants which would warrant a jury trial” (Dano v Royal Globe Ins. Co., 89 AD2d 817, 818).

A party whose affirmative defenses lack merit as a matter of law has no basis for a continuance of a summary judgment motion under CPLR 3212(f).

Lincoln First Bank v. Spaulding Bakeries Inc. · filed 1983-02-08(f)

Its affirmative defenses thus being dismissed as without merit as a matter of law, defendant Cerasaro has failed to show any basis for a continuance of this motion pursuant to CPLR 3212 (subd [f]).

CPLR 3212(f) requires a party opposing summary judgment to show that essential facts may exist but cannot yet be stated; hypothetical speculation does not suffice.

Minister of the Reformed Protestant Dutch Church v. 198 Broadway, Inc. · filed 1983-06-09(f)

Although Modell argues in a conclusory manner that when the Church became fee owner and its subsidiary became the tenant under the master lease, both became obligated to accept Modell's exercise of its option to renew the sublease, it offers no tender of proof in admissible form, no submission that facts essential to justify opposition may exist that could not have been stated (other than a litany of theoretical questions followed by hypothetical speculations calculated to justify a fishing expedition) (CPLR 3212, subd [f]), and no legal theory to sustain its conclusion.

Section 3212(f) permits denial of summary judgment when the motion depends on facts outside the opposing party’s knowledge.

Yager v. Arlen Realty & Development Corp. · filed 1983-06-27(f)

Summary judgment should be denied when the motion is predicated on facts which are not within the knowledge of the opposing party (see CPLR 3212, subd [f]; Franklin Nat. Bank of Long Is. v De Giacomo, 20 AD2d 797).

CPLR 3212(f) does not justify denying summary judgment for an examination that could not reasonably be expected to produce evidence needed to oppose the motion.

Dano v. Royal Globe Insurance · filed 1983-06-07(f)

It was, therefore, plaintiffs’ burden to show that defendant Andrews acted with malice and, there being nothing to establish that examination of Turnbull could reasonably be expected to result in evidence of malice on the part of the Andrews firm and no other examination having been requested, CPLR 3212 (subd [f]) provided no basis for denial of the motion of defendants (other than Turnbull) for summary judgment.

CPLR 3212(f) permits a court to deny summary judgment to allow discovery when facts essential to opposing the motion may exist but cannot yet be stated.

Denton v. Clove Valley Rod & Gun Club, Inc. · filed 1983-06-27(f)

CPLR 3212 (subd [f]) provides that if facts essential to justify opposition to a summary judgment motion may exist but cannot then be stated, the court may deny the motion in order to allow discovery.

Section 3212(f) allows a party opposing summary judgment a reasonable opportunity for disclosure when relevant facts are peculiarly within the moving party’s knowledge.

International Trading & Sales, Inc. v. Philipp Bros. · filed 1983-11-03(f)

Plaintiff has not had an opportunity for disclosure proceedings to determine whether defendant does have such a note or memorandum; the facts as to that are peculiarly within the knowledge of the defendant. Plaintiff is entitled to a reasonable opportunity for disclosure to determine whether any such note or memorandum exists. (See CPLR 3212, subd [f].)

A party may move for summary judgment under CPLR 3212(a) only after issue has been joined; an unanswered amended complaint makes the motion premature.

Schoenborn v. Kinderhill Corp. · filed 1983-12-01(a)

Defendant moved on January 14, 1982 for summary judgment pursuant to CPLR 3212 without having answered the amended complaint. ... It is clear that the motion was premature and should have been denied ... Having determined that the motion was improperly granted, we do not reach the remaining contentions.

Subdivision (f) does not permit speculative discovery to oppose summary judgment; the party seeking it must show that the sought facts may exist.

Amsterdam Savings Bank v. Terra Domus Corp. · filed 1983-11-17(f)

There is no evidence to show that what Sisson is seeking may actually exist and CPLR 3212 (subd [f]) does not permit fishing expeditions.

A plaintiff opposing summary judgment on a serious-injury claim must provide medical proof; allegations of limited body function alone do not create a genuine factual issue.

Jones v. Sharpe · filed 1984-02-02

Mere allegations of limitation of body functions without medical proof are insufficient to demonstrate the existence of a genuine factual issue (Daviero v Johnson, 88 AD2d 732, 733).

Section 3212(f) permits denial of summary judgment when the information needed to oppose the motion is exclusively within the moving party’s knowledge.

K.S.L.A. Construction Corp. v. Paccione · filed 1984-06-04(f)

Moreover, if viewed from the perspective of a summary judgment motion, the application should still have been denied pursuant to CPLR 3212 (subd [f|) on the ground that the information necessary to oppose it is exclusively within the knowledge of the moving party.

CPLR 3212(f) requires a party opposing summary judgment to show that essential facts may exist but cannot yet be stated, including likely defenses dependent on information exclusively held by the movant.

Poluliah v. Fidelity High Income Fund · filed 1984-06-12(f)

In addition, Mrs. Halpern’s opposing affidavits failed to show “that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 subd [f]). The affidavits did not demonstrate that there were likely to be defenses and that these defenses depended upon knowledge in the exclusive possession of movant (see Terranova v Emil, 20 NY2d 493).

CPLR 3212(f) permits a reasonable opportunity for disclosure before summary judgment when relevant facts are peculiarly within the moving party’s knowledge.

International Trading & Sales, Inc. v. Philipp Bros. · filed 1984-03-13(f)

Plaintiff has not had an opportunity for disclosure proceedings to determine whether defendant does have such a note or memorandum; the facts as to that are peculiarly within the knowledge of the defendant. Plaintiff is entitled to a reasonable opportunity for disclosure to determine whether any such note or memorandum exists.

CPLR 3212(f) requires a party seeking discovery before summary judgment to present available proof of a factual issue or a significant probability that discovery will reveal one.

Scharlack v. Richmond Memorial Hospital · filed 1984-07-02(f)

Respondents relied instead upon CPLR 3212 (subd [f]) and asserted a need for pretrial discovery from the appellants in order to properly respond to their motion. ... Clearly, the respondents have failed to lay bare any proof available to them which would show that true questions of fact are presented herein regarding appellants’ liability or that there was any significant probability that pretrial examination of the appellants would have disclosed any proof to establish that such questions of fact exist.

Section 3212(f) permits denial of summary judgment when facts needed to oppose the motion exist but are currently unavailable.

Flushing National Bank v. Transamerica Insurance · filed 1985-07-22(f)

Although plaintiff failed to demonstrate actual losses arising from employee dishonesty with regard to other transactions, which apparently did not involve trading, it did demonstrate that facts regarding the details of these losses do exist, but are currently unavailable. Therefore, summary judgment was properly denied regarding these transactions at this point in time (see, CPLR 3212 [fj; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(f) permits a court to defer summary judgment when facts needed to oppose it are within the other party’s control and discovery is needed to obtain them.

Colonresto v. Good Samaritan Hospital · filed 1987-03-30(f)

Evidence of such a relationship, however, would be peculiarly within the control of the defendant and his codefendants and the plaintiff should have an opportunity to conduct discovery (CPLR 3212 [f]; Terranova v Emil, 20 NY2d 493).

CPLR 3212(f) permits a court to stay a summary judgment motion for discovery when facts needed to oppose it are held by adverse parties and the opponent promptly pursues discovery.

Alston v. Golub Corp. · filed 1987-04-23(f)

In view of the fact that Golub promptly commenced discovery, the better exercise of discretion would have been to stay plaintiff’s summary judgment motion pending Golub’s deposition of witnesses (see, Pastoriza v State of New York, supra, at 607; cf., Golding v Weissman, 35 AD2d 941, appeal dismissed 29 NY2d 913).

Subdivision (f) permits denial of summary judgment without prejudice when evidence needed to oppose the motion is exclusively within the moving party’s control and has not yet been disclosed.

Denkensohn v. Davenport · filed 1987-05-14(f)

We therefore conclude that Supreme Court improperly granted Pool Technology summary judgment because the information necessary to establish whether the corporation was an alter ego of Aquaslide was within the exclusive knowledge of the moving party and had not been subject to disclosure (CPLR 3212 [f]), and for the further reason that additional evidence on the relationship of the corporations might have been forthcoming from the limited disclosure of Aquaslide authorized by the Bankruptcy Court.

Section 3212(f) supports denying summary judgment when material facts are within the movant’s knowledge and may be revealed through discovery.

Integrated Logistics Consultants v. Fidata Corp. · filed 1987-06-18(f)

This is especially so where, as here, there are salient facts within the knowledge and control of the movant which may be revealed through pretrial disclosure proceedings (see, CPLR 3212 [f]; Terranova v Emil, 20 NY2d 493, 497; Simpson v Term Indus., 126 AD2d 484; Mack v Gregory Mem. Hosp., 90 AD2d 969; Bank Leumi Trust Co. v Felner, 70 AD2d 869).

Section 3212(f) permits an adjournment for further discovery when the party seeking it provides a basis for one.

Perritano v. Perone · filed 1987-05-04(f)

Further, the plaintiff did not set forth any basis upon which an adjournment should have been granted for the purpose of further discovery (see, CPLR 3212 [f]).

Section 3212(f) does not permit further discovery after a statement of readiness merely because a summary judgment motion was filed; the party seeking disclosure must show special, unusual or extraordinary circumstances.

Boisvert v. Town of Grafton · filed 1987-06-04(f)

Supreme Court denied the summary judgment motion pursuant to CPLR 3212 (f) in order to allow plaintiff to conduct additional discovery. ... Plaintiff’s contention that a summary judgment motion made after the filing of a note of issue constitutes a per se special circumstance justifying further discovery is unpersuasive. Instead, the facts and procedure of the particular case must be considered.

Section 3212(f) permits a court to continue a summary judgment motion for disclosure when facts supporting the opposing party’s position exist but cannot yet be stated.

Rensco Federal Credit Union v. Hooley · filed 1987-07-16(f)

Under CPLR 3212 (f), when it appears that facts supporting the position of the party opposing summary judgment exist but cannot be stated, the court may order a continuance to permit disclosure to be had.

CPLR 3212(f) does not permit postponing a summary judgment decision based solely on the hope that discovery will uncover supporting evidence.

Kennerly v. Campbell Chain Co. · filed 1987-10-13(f)

Mere hope that somehow the plaintiffs will uncover evidence that will prove their case, provides no basis, pursuant to CPLR 3212 (f), for postponing a decision on a summary judgment motion (see, Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d 791, affd 67 NY2d 627; Babcock v Allan, 115 AD2d 297).

CPLR 3212(f) permits denial of a summary judgment motion as premature when facts essential to opposing it may exist but are within the movant’s exclusive knowledge.

Smith v. City of New York · filed 1987-10-26(f)

With respect to the negligence cause of action, however, the motion was correctly denied as premature. The plaintiff has not had the opportunity to complete its examination before trial of all the defendants, including Shell. It is apparent from the record that facts essential to justify opposition to the motion may exist but cannot be stated at this time as they are within the exclusive knowledge of Shell (see, CPLR 3212 [f]).

Section 3212(f) does not require a court to defer summary judgment for further discovery when the opposing party has not requested that relief or shown that discovery may reveal facts creating a triable issue.

Ryan v. Town of Cortlandt · filed 1987-11-16(f)

Nor should the court have deferred a ruling on the motion for summary judgment pursuant to CPLR 3212 (f) ... since the plaintiff never requested such relief (see, Stephano v News Group Publ., 64 NY2d 174, 186, on remand 107 AD2d 610; see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:33).

Subdivision (f) requires a basis in the record to conclude that facts essential to oppose summary judgment may exist but cannot yet be stated.

Cohoes Rod & Gun Club, Inc. v. Firemen's Insurance · filed 1987-11-25(f)

There is nothing in the record to indicate that the provisions of CPLR 3212 (f) should be invoked.

A party opposing summary judgment must provide proof in admissible form sufficient to raise an issue of fact.

Howell v. Dundee Fair Ass'n · filed 1987-12-18(b)

Plaintiff, however, failed to come forward in opposition to the motion with proof in admissible form sufficient to raise an issue of fact as to whether the accident occurred in a restricted area (see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Therefore, defendants are entitled to summary judgment dismissing plaintiff’s complaint.

A bare assertion that further disclosure may reveal evidence does not warrant a continuance under CPLR 3212(f).

McGill v. Caldors, Inc. · filed 1987-12-30(f)

Finally, plaintiffs’ bald assertion that Caldor created the hazardous condition did not mandate a continuance for further disclosure (CPLR 3212 [f]; cf., Rensco Fed. Credit Union v Hooley, 132 AD2d 842).

Under CPLR 3212(f), incomplete discovery does not prevent summary judgment when the opposing party fails to raise the issue in its affidavit or identify facts that could support a viable claim.

Ward v. Scoville · filed 1988-04-07(f)

The contention that Supreme Court’s decision not to compel discovery frustrated plaintiffs’ ability to resist defendants’ summary judgment motion (see, CPLR 3212 [f]) lacks force. Not only did plaintiffs fail to make this assertion in their affidavit in opposition to the motion (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:33, at 450), but the uncontroverted record evidence furnishes no basis for finding defendants liable for fraud and plaintiffs do not even attempt to postulate the existence of facts that would yield a viable claim against defendants (see, CPLR 3212 [f]). Accordingly, even though discovery was not complete, summary judgment was properly granted (see, Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026).

Section 3212(f) permits denial of summary judgment when the opposing party sufficiently explains its offer to submit relevant expert findings for in camera inspection.

Lott v. Aetna Life & Casualty Co. · filed 1988-05-19(f)

Supporting proof may be found in the affidavit of Aetna’s investigating claims representative, wherein she offered to submit to Supreme Court for an in camera inspection Aetna’s expert’s report and findings on the issue of arson. Although this offer was not accepted by the court, the reason for its submission in this form is sufficient to trigger the provisions of CPLR 3212 (f) and provide additional grounds for the denial of the motion for summary judgment (see, R.C.S. Farmers Mkts. Corp. v Great Am. Ins. Co., 56 NY2d 918, 921).

Section 3212(f) permits denial of summary judgment when facts needed to oppose the motion are controlled by the movant and may be revealed through discovery.

Bernola v. Vogt · filed 1988-05-27(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]; Blue Bird Coach Lines v 107 Delaware Ave., 125 AD2d 971; Mack v Gregory Mem. Hosp., 90 AD2d 969).

CPLR 3212(f) does not permit postponing a summary judgment decision based on speculation that discovery might uncover useful evidence.

Marshall v. Colvin Motor Parts of Long Island, Inc. · filed 1988-05-31(f)

The mere speculation that something might be uncovered through discovery provides no basis pursuant to CPLR 3212 (f) to postpone decision on the summary judgment motion.

Section 3212(f) permits a court to withhold summary judgment when an affidavit shows that material facts may exist but cannot yet be stated.

Norstar Bank v. Pickard · filed 1988-05-27(f)

Although we are empowered, on appeal, to grant summary judgment to a nonmoving party (Wiseman v Knaus, 24 AD2d 869), we decline to do so because plaintiff showed by affidavit that facts to sustain its position that it did not "knowingly” violate the usury law may exist but could not then be stated (see, CPLR 3212 [f]).

Section 3212(f) does not preclude summary judgment merely because discovery is incomplete when the opposing party had ample opportunity to pursue it.

Hecht v. Vanderbilt Associates · filed 1988-06-20(f)

Under the circumstances of this case, the plaintiff was afforded ample opportunity to pursue discovery, and the assertion that discovery was not completed did not preclude the granting of summary judgment (see, Guarino v Mohawk Containers Co., 59 NY2d 753, 754; Witte v Incorporated Vil. of Port Washington N., 114 AD2d 359; Pro Brokerage v Home Ins. Co., 99 AD2d 971, appeal dismissed 64 NY2d 646).

Section 3212(f) permits delaying summary judgment for discovery when opposing affidavits show that essential facts may exist but cannot yet be stated.

Dibble v. WROC TV Channel 8 · filed 1988-07-07(f)

Finally, there is not merit to defendants’ claim that summary judgment should have been denied because they have not completed discovery and may uncover facts which would support their defenses. It does not appear from the affidavits submitted in opposition to the motion "that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]).

A party opposing summary judgment as premature must show that facts essential to its opposition exist but cannot be stated.

Anarumo v. Terminal Construction Corp. · filed 1988-10-03(f)

Finally, we reject Terminal’s contention that the motion should be denied as premature. Terminal has already deposed the injured plaintiff and it has made no showing that facts essential to its opposition to the motion exist but cannot be stated (see, CPLR 3212 [f]).

Summary judgment is premature when a party has exclusive possession of essential facts that may be obtained through discovery.

Truran v. Otis Elevator Co. · filed 1988-10-31

Furthermore, it appears from this record that American Can Company is in exclusive possession of essential facts which may be the subject of discovery and thus should not be removed from the action at this stage (see, CPLR 3212; Di Miceli v Olcott, 119 AD2d 539).

Section 3212 generally bars successive summary judgment motions in the same action absent newly discovered evidence or other good cause.

Tolisano v. Texon · filed 1988-11-15

We agree with the I.A.S. court’s invocation of the rule against multiple summary judgment motions in the same action in the absence of newly discovered evidence or other good cause.

Section 3212(b) permits a court to grant summary judgment to a party that did not move for it, and declining to do so does not bar a later grant on that party’s own motion.

Colpits v. Cascade Valley Land Corp. · filed 1988-12-08(b)

The failure of Supreme Court to grant summary judgment to plaintiffs on the first motion, as it was empowered to do pursuant to CPLR 3212 (b), does not foreclose granting plaintiffs summary judgment on their subsequent motion.

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

Noto v. St. Vincent's Hospital & Medical Center · filed 1988-12-28(a)

The plaintiff’s cross motion for summary judgment must be denied as premature. "A motion for summary judgment ... may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to”.

CPLR 3212(f) permits a party opposing summary judgment to seek further discovery, but the court may reject a request it finds without merit.

Stickles v. HMC Corp. · filed 1988-10-17(f)

The plaintiffs’ contention, raised in a surreply affirmation, that they should be permitted further discovery pursuant to CPLR 3212 (f) is without merit (see, Kennerly v Campbell Chain Co., 133 AD2d 669; La Scala v D’Angelo, 104 AD2d 930).

Under CPLR 3212(b), a conclusory claim that further discovery might uncover evidence is insufficient to defeat summary judgment.

Pollock v. City of New York · filed 1988-12-29(b)

Further, the plaintiff’s conclusory allegation that additional information might be uncovered if discovery were permitted to proceed is insufficient to warrant denial of the branch of the motion which was for summary judgment (see, CPLR 3212 [b]; Marshall v Colvin Motor Parts, 140 AD2d 673; Citibank v Furlong, 81 AD2d 803).

CPLR 3212(f) permits a court to withhold summary judgment when a party has not had an opportunity to obtain discovery about material facts.

Schwarz v. Schwarz · filed 1989-01-03(f)

Although the third cause of action could have been more artfully drafted, the record herein discloses sufficient unresolved questions of fact to preclude summary judgment. It is also noted that plaintiff has not been accorded an opportunity to obtain discovery of defendants with respect, for example, to whether there was a lease for the first-floor premises (see, CPLR 3212 [f]).

Section 3212 permits summary judgment before discovery is complete when further discovery would serve no useful purpose.

Heydt Contracting Corp. v. American Home Assurance Co. · filed 1989-01-17

Since plaintiff was required to comply with its contractual obligation to serve timely notice regardless of any actual knowledge by defendant, further discovery would serve no useful purpose.

Section 3212(f) permits discovery before summary judgment when facts needed to oppose the motion are exclusively known to the moving party.

Adamar of New Jersey, Inc. v. Chase Lincoln First Bank · filed 1989-01-25(f)

Furthermore, these facts are all within the exclusive knowledge of the plaintiff, and defendant should be permitted discovery prior to a motion for summary judgment. (See, CPLR 3212 [f].)

Section 3212(b) requires opposition papers to provide a sufficient basis for delaying summary judgment to allow discovery.

Garnham & Han Real Estate Brokers, Inc. v. Oppenheimer · filed 1989-03-13(b)

Moreover, the plaintiffs papers in opposition to the defendant’s motion were insufficient to justify the denial of the motion in order to allow the plaintiff discovery (see, CPLR 3212 [b]; Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026).

Section 3212(f) does not allow a party to delay summary judgment for discovery when its own inaction left the facts unascertained.

Fine Arts Enterprises v. Levy · filed 1989-04-06(f)

Nor do we agree that defendant should have been permitted to conduct further discovery on this issue. A motion for summary judgment cannot be defeated on the ground that more discovery is needed if the opposing party has failed to ascertain the facts due to its own inaction (see, Meath v Mishrick, 68 NY2d 992, 994-995; Twining, Nemia & Hill v Read Mem. Hosp., 89 AD2d 432, 434).

Section 3212(f) does not warrant deferring a summary judgment ruling merely because further discovery might uncover useful evidence.

Pancake v. Franzoni · filed 1989-04-17(f)

A mere chance or hope that something will be uncovered if the plaintiff is provided with an opportunity to complete discovery does not warrant the deferral of a ruling on a motion for summary judgment pursuant to CPLR 3212 (f) (Harris v Alcan Aluminum, Corp., 91 AD2d 830, affd 58 NY2d 1036).

Section 3212(f) permits denial of summary judgment when facts essential to oppose the motion are unavailable to the opposing party, particularly when they are within the movant’s knowledge.

Logan v. City of New York · filed 1989-06-29(f)

In the matter before us, it is also apparent that facts essential to justify opposition to the motion for summary judgment are unavailable to plaintiff and, indeed, are likely to be exclusively within the knowledge of the defendants, a factor which renders summary judgment relief particularly inappropriate.

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

Donald Zucker Co. v. Lieberman · filed 1992-05-19(f)

On the other hand, since these questions turn on facts which are unavailable to defendants (see, CPLR 3212 [f]), summary judgment in plaintiff’s favor is not warranted.

CPLR 3212(f) permits a party opposing summary judgment to explain its failure to submit admissible proof when the relevant evidence is exclusively in the movant’s possession and disclosure is pending.

River Bank America v. Daniel Equities Corp. · filed 1995-03-23(f)

It is undisputed that evidence concerning the existence of the interest reserve account and plaintiff’s conduct in relation thereto is exclusively within the possession of plaintiff and that disclosure on this issue is pending in another action between plaintiff and the mortgagor. In these circumstances, there is an adequate excuse for defendants’ failure to submit evidentiary proof in admissible form (see, CPLR 3212 [f]).

CPLR 3212(f) permits denial of summary judgment when essential facts are exclusively within the moving party’s knowledge and may be disclosed through a deposition.

Kindzierski v. Foster · filed 1995-07-14(f)

"Summary judgment is not justified where the existence of essential facts depends upon knowledge exclusively within the possession of the moving party and which might well be disclosed by cross-examination or examination before trial (CPLR 3212 [f]; Terranova v Emil, 20 NY2d 493, 497)” ... We, therefore, reverse the orders on appeal and deny defendants’ motions for summary judgment without prejudice to renewal upon completion of the deposition of Leszczynski.

Section 3212(f) permits a court to deny summary judgment when the opposing party cannot effectively respond because needed evidence is within the moving party’s exclusive knowledge.

Levy v. Board of Education of the City of Yonkers · filed 1996-10-07(f)

It is well established that "where a party is unable to effectively oppose a motion for summary judgment because the evidence needed is within the exclusive knowledge of the moving party, the court may deny the motion” (Yu v Forero, 184 AD2d 506, 507; see, CPLR 3212 [f]; Classic Moments Co. v Akata, 176 AD2d 567).

Section 3212(f) permits the court to make a just order when facts needed to oppose summary judgment may exist but are unavailable to the opposing party.

Chiambalero v. Waldbaum's Supermarket, Inc. · filed 1998-05-05(f)

Where the opposing affidavits assert that facts necessary to oppose the motion may exist but are unavailable to the opposing party, the court may make such order as may be just (CPLR 3212 [f]).

CPLR 3212(f) supports denying summary judgment when the opposing party shows issues of fact warranting trial, especially where relevant facts are exclusively in the movant’s possession.

Chesnut Hill Real Estate Corp. v. Resnick · filed 1999-05-03(f)

The defendants third-party plaintiffs have met their burden of demonstrating the existence of issues of fact warranting a trial (see, Zuckerman v City of New York, 49 NY2d 557, 559; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067), especially where the facts surrounding the transactions at issue are within the exclusive possession of the plaintiff and the third-party defendants (see, CPLR 3212 [f]; ATN Marts v Ireland, 195 AD2d 959, 960; Silverman v Arrow Linen Supply Co., 131 AD2d 459, 460).

CPLR 3212(f) permits denial of summary judgment when information needed to oppose the motion remains within the movant’s exclusive knowledge.

Perez v. City of New York · filed 1999-11-09(f)

Further, insofar as plaintiffs evidence attributing the alleged defect in the sidewalk to appellant’s special use thereof might be characterized as weak, we note, as the motion court did, the utter unresponsiveness of appellant’s deposition witness to questions pertinent to the building’s management and maintenance, and plaintiffs still unmet need for information in that regard within appellant’s exclusive knowledge (CPLR 3212 [f]).

Section 3212(f) permits denial of summary judgment when facts essential to opposing the motion are in the possession of the moving party or a third party.

CBS Corp. v. Dumsday · filed 2000-01-25(f)

Finally, defendants’ motion for summary judgment was properly denied since, inter alla, it is evident that the essential facts necessary for plaintiff to oppose the motion are within the possession of defendants and/or Con Edison (CPLR 3212 [f]).

Section 3212(f) does not bar summary judgment on the ground that essential facts are exclusively in the movant’s possession when the opposing party has deposed the movants and another knowledgeable person.

James v. LeFeber · filed 2000-09-29(f)

The contention of plaintiff that facts essential to justify his opposition to the motion are within the exclusive possession of defendants (see, CPLR 3212 [f]; Terranova v Emil, 20 NY2d 493, 497) is unavailing. Defendants have been deposed by plaintiff and, in any event, another person having knowledge of Patterson’s activities has also been deposed by plaintiff.

Under CPLR 3212(f), a party opposing summary judgment must show that facts essential to its opposition are within the moving party’s exclusive knowledge.

Pearsall v. Saracco · filed 2003-05-27(f)

Further, the defendants did not establish that facts essential to oppose the motion were within the exclusive knowledge of the plaintiffs (see CPLR 3212 [f|; Halpern Dev. Venture v Board of Trustees of Vil. of N. Tarrytown, 222 AD2d 652 [1995]).

CPLR 3212(f) allows a party to oppose summary judgment because essential facts are unavailable, but requires an evidentiary showing rather than speculation.

Preferred Capital, Inc. v. PBK, Inc. · filed 2003-10-02(f)

Although a motion for summary judgment may be opposed on the ground “that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]), “the opposing party must make an evidentiary showing supporting this conclusion, mere speculation or conjecture being insufficient” (Pank v Village of Canajoharie, 275 AD2d 508, 509 [2000]; see Firth v State of New York, 287 AD2d 771, 773 [2001], affd on other grounds 98 NY2d 365 [2002]). Defendants here failed to make the necessary evidentiary showing.

Section 3212(f) does not excuse an opposing party from submitting evidence based on facts the party observed firsthand.

Huggins v. Ricca · filed 2008-02-26(f)

The Supreme Court denied the motion, finding that facts essential to justify opposition to a motion for summary judgment were exclusively within the knowledge and control of the movants (see CPLR 3212 [f]; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637 [2006]). However, in this case, the plaintiffs, who were present at the subject accident, failed to submit affidavits based on their own direct observations, which was not evidence within the exclusive knowledge and control of the movants (see Lavin & Kleiman v Heinike Assoc., 221 AD2d 919 [1995]).

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

Ward v. Ward · filed 2008-06-05(f)

Given that the facts necessary for plaintiff to oppose the summary judgment motion were exclusively within defendant’s knowledge, defendant was not entitled to summary judgment (see Tenkate v Moore, 274 AD2d 934, 935 [2000]; Reohr v Golub Corp., 242 AD2d 850, 851 [1997]; see also CPLR 3212 [f]).

CPLR 3212(f) permits denial of summary judgment when facts essential to a defense may exist but remain in the movant’s possession despite discovery demands.

Five Boro Psychological Services, P.C. v. AutoOne Insurance · filed 2010-04-09(f)

In opposition to plaintiffs motion and in support of its cross motion to, among other things, compel discovery, defendant established that while facts may exist that are essential to justify the denial of plaintiffs summary judgment motion, defendant was unable to set forth sufficient facts to establish one of its defenses, to wit, plaintiffs alleged fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), since such information was within plaintiffs possession and plaintiff had not complied with defendant’s discovery demands therefor (see CPLR 3212 [f]).

CPLR 3212 (f) permits denial of summary judgment when material facts needed to oppose the motion remain unavailable before disclosure.

Loder v. Nied · filed 2011-11-03(f)

Supreme Court properly exercised its discretion in denying such relief based upon plaintiff’s assertion that certain material facts— particularly concerning the issue of actual malice — are unavailable to plaintiff because, among other things, there has been no disclosure whatsoever (see CPLR 3212 [f]; Stukuls v State of New York, 42 NY2d at 282; Grier v Johnson, 232 AD2d 846, 848 [1996]; see generally Stockwell v Town of New Berlin, 69 AD3d 1266, 1268 [2010]).

Section 3212(e) prohibits granting summary judgment to the nonmoving party in a matrimonial action.

Pone v. Pone · filed 1991-04-04(e)

CPLR 3212 (e) provides that summary judgment may not be granted in favor of the nonmoving party in a matrimonial action.

CPLR 3212 (e) bars summary judgment for a nonmoving party in a matrimonial action, but the amendment need not apply to a pending case when doing so would be infeasible or unjust.

Klepper v. Klepper · filed 1986-11-10(e)

For all these reasons, we conclude that the amendment to CPLR 3212 (e) barring reverse summary judgment in matrimonial actions should not apply to the circumstances here presented (see, Wald v Wald, supra).

CPLR 3212(e) prohibits summary judgment for a nonmoving party in matrimonial actions, but the former procedure may apply in a pending action when applying the amendment would work injustice.

Wald v. Wald · filed 1986-04-07(e)

... the Legislature amended CPLR 3212 (e) to prohibit the granting of summary judgment in favor of the nonmoving party in matrimonial actions (L 1984, ch 827).

CPLR 3212 (e) bars summary judgment in favor of the nonmoving party in a matrimonial action, and the court applied that amendment to a pending action.

Kahrs v. Kahrs · filed 1985-05-28(e)

On August 5, 1984, while this case was in the appellate process, CPLR 3212 (e), relating to partial summary judgment, was amended (L 1984, ch 827) to provide that “[i]n a matrimonial action summary judgment may not be granted in favor of the non-moving party”. ... CPLR 10003 makes it clear that the amendatory statute should apply in the instant case.

Section 3212(e) bars summary judgment in favor of the nonmoving party in a matrimonial action.

Rosenberg v. Rosenberg · filed 1984-11-07(e)

The change in the law (L 1984, ch 827) amends CPLR 3212 (subd [e]) to read in pertinent part as follows: “(e) Partial summary judgment; severance. In a matrimonial action summary judgment may not be granted in favor of the non-moving party.” ... Accordingly, the memorandum decision of August 23,1984, is vacated; the proposed order submitted by defendant shall not be entertained by the court, and the motion of the defendant for reverse partial summary judgment is denied.

In a matrimonial action, a plaintiff cannot move for summary judgment to declare a foreign divorce void or a marriage valid.

Roberts v. Roberts · filed 1965-07-23(d)

Thus a motion for summary judgment is not available to plaintiff to declare the Alabama divorce a nullity or to declare her marriage to defendant currently valid and existing. By statute, this summary procedure is open only to the defendant in a matrimonial action.

Section 3212(d) bars summary judgment for a plaintiff in a matrimonial action, but does not bar it in an action to determine obligations under a separation agreement.

Denberg v. Frischman · filed 1965-11-04(d)

While CPLR 3212 (subd. [d]) forbids the granting of summary judgment to a plaintiff in matrimonial actions, this is not such an action. Plaintiff, the former husband, seeks a declaration and associated relief not as to marital status but as to his obligations under the separation agreement.

In a matrimonial action, only the defending party may obtain summary judgment, based on documentary evidence or official records sufficient to establish a defense as a matter of law.

Gelep v. Gelep · filed 1966-11-10(d)

In a matrimonial action, which includes one for annulment (CPLR 105, subd. [m]), a motion for summary judgment is available only to the defending party, based on documentary evidence or official records which establish the defense to the cause of action sufficiently to warrant the court as a matter of law in directing judgment, and the party seeking matrimonial relief cannot obtain it by summary judgment, even if he has documentary proof (CPLR 3212, subd. [d]; ...). Motion denied.

A motion under CPLR 3212(d) is unwarranted when the documentary evidence does not establish the asserted defense.

Helfond v. Helfond · filed 1967-05-17(d)

The certificate of registration issued by the City Clerk and submitted by the movant as the basis for this motion does not disclose who performed the marriage ceremony. Therefore, the motion was not technically supported by the documentary evidence and a motion pursuant to CPLR 3212 (subd. [d]) is unwarranted.

Section 3212(a) permits summary judgment in matrimonial actions.

Salomon v. Salomon · filed 1979-12-13(a)

CPLR 3212 (subd [a]) was recently amended (L 1978, ch 532, eff Jan. 1, 1979) to permit summary judgment to be utilized in a matrimonial action.

CPLR 3212 makes summary judgment available in matrimonial actions to either party.

Librizzi v. Librizzi · filed 1982-01-06

Since the amendment of CPLR 3212 in 1978, effective January 1,1979, summary judgment is available in matrimonial actions in behalf of either plaintiff or defendant (Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:7, 1981-1982 Pocket Part, p 92).

Section 3212 permits summary judgment or partial summary judgment in matrimonial actions on sufficient proof, regardless of which party moves.

Douek v. Douek · filed 1982-02-23

CPLR 3212 and section 211 of the Domestic Relations Law now permit summary judgment or partial summary judgment in matrimonial actions when such motion is based upon sufficient proof thereof, regardless of which party is moving for such relief.

Section 3212(e) bars reverse partial summary judgment in matrimonial actions.

Fridman v. Fridman · filed 1986-05-05(e)

Special Term granted the defendant husband’s motion for reverse partial summary judgment subsequent to the enactment of CPLR 3212 (e), which proscribes such relief in matrimonial actions.

CPLR 3212(e) does not bar a party who moves for summary judgment from obtaining it on that party’s own counterclaim for a conversion divorce.

Fisher v. Fisher · filed 1987-07-10(e)

Since defendant interposed a counterclaim in which he sought a conversion divorce pursuant to Domestic Relations Law § 170 (6) and thereafter brought this motion for summary judgment, CPLR 3212 (e) does not bar him from affirmatively seeking summary judgment on his counterclaim for conversion divorce.

CPLR 3212 permits summary judgment in matrimonial actions when no material facts require a trial.

Burger v. Burger · filed 2012-07-09

There are no material issues of fact in the instant action which would bar wife’s entitlement to judgment as a matter of law. Accordingly, branch “a” of wife’s motion is granted.

CPLR 3212 summary judgment is available against the State in the Court of Claims.

Chemical Bank New York Trust Co. v. State · filed 1966-06-24

This is a motion made by the claimant for an order striking out any defense of the State and directing judgment in favor of claimant pursuant to CPLR 3212 on the ground that there is no defense to this action. ... On the issue of whether or not the procedure of summary judgment is available in this court, we hold that it is available.

Section 3212(a) permits summary judgment in the Court of Claims without a formal answer because the claim’s allegations are treated as denied, joining issue.

Vern Norton, Inc. v. State · filed 1966-12-22(a)

In the Court of Claims the general denials effected by rule 13 serve the purposes of an answer, thus immediately and explicitly establishing the issues. ... Thus, in this case, “ issue has been joined ” for purposes of the summary judgment rule. (CPLR 3212, subd. [a].)

A court may exercise its discretion to entertain a CPLR 3212 summary judgment motion after trial has begun when granting it would dispose of the action.

Werner v. State of New York · filed 1981-07-06

Claimant presents the threshold argument that trial of the action in the Court of Claims having begun, the court should not have entertained and the Appellate Division could not grant a motion for summary judgment. We perceive no abuse of discretion in the courts below having entertained the motion, which if granted would dispose of the action.

Section 3212(g) allows a court to establish issues for trial after denying summary judgment, but the denial alone does not establish disputed issues as the law of the case.

Pugatch v. David's Jewelers · filed 1967-03-24(g)

However, CPLR 3212 (subd. [g]) introduced a new element to what had been considered well-established law. ... Thus, while the prior doctrine that denial of summary judgment establishes no law of the case might appear to be somewhat modified, we must give a denial no greater weight than heretofore unless it clearly appears that some issues in the case are incontrovertible, and Special Term has expressly declared not that issues are existent, but that they have been eliminated.

Section 3212(b) does not allow a party to obtain summary judgment on the same facts after its earlier motion for that relief was denied.

Mobil Oil Corp. v. Town of Huntington · filed 1975-11-07(b)

Nevertheless, denial of its previous motion now precludes Mobil from obtaining summary judgment on the same facts either by a second motion or reliance on CPLR 3212 (subd [b]), since the grant of such relief would have the effect of frustrating the earlier disposition.

Section 3212(g) permits a court to determine an issue while leaving the remaining issues unresolved on a summary judgment motion.

Eastman Chemical Products, Inc. v. Fonda Manufacturing Corp. · filed 1979-05-22(g)

— Order, Supreme Court, New York County, entered November 15, 1978, denying plaintiffs motion for summary judgment, and granting defendant leave to serve an amended and supplemental answer, unanimously modified, on the law, without costs, to the extent that the court determines pursuant to CPLR 3212 (subd [g]) that defendant is not entitled to credit for the postjudgment interest amounting to $7,166.36 which plaintiff collected on the judgment of February 13, 1973, and otherwise affirmed.

A denial of summary judgment generally establishes only that summary judgment was unwarranted; it does not preclude a party from later raising the underlying issue as a defense.

Puro v. Puro · filed 1981-01-08

“A denial of a motion for summary judgment will generally be res judicata of nothing except that summary judgment was not warranted” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212, C3212:21, p 440). Accordingly, it was an abuse of discretion to deprive the defendants of the right to raise the affirmative defense of lack of acceptance of the tender on plaintiff’s part.

A prior summary judgment ruling does not bar a later motion under the law of the case when the earlier ruling addressed different issues.

Spancrete Northeast, Inc. v. Travelers Indemnity Co. · filed 1984-06-07

Turning first to plaintiff’s argument that a prior order which denied a previous motion for summary judgment on the ground that there were “no triable issues of fact” (CPLR 3212) established the law of the case and precludes the maintenance of this motion by defendant for identical relief, we hold that the first order did not have the proscriptive effect urged by plaintiff. ... Such a ruling, in our view, did not raise law of the case implications that would preclude maintenance of the present motion.

Section 3212 permits denial of summary judgment when a financing arrangement presents sufficient potential unconscionability.

Pactel Finance v. D. C. Marine Service Corp. · filed 1987-06-17

There is sufficient potential unconscionability in a financing arrangement for a contract to supply both goods and services which purports to exclude warranties and obligates the purchaser to make installment payments even where the bargained-for services are not provided to preclude summary judgment.

Denial of summary judgment does not prevent the trial court from directing a verdict based on the evidence presented at trial.

Greene v. City of New York · filed 1992-06-29

A denial of a motion for summary judgment is res judicata of nothing except that summary judgment was not warranted. The denial does not preclude the Trial Judge on whatever evidence develops at the trial from either directing a verdict or granting judgment notwithstanding the verdict.

Denial of a pretrial summary judgment motion under CPLR 3212 does not bar a motion to dismiss under CPLR 4401 during trial.

Sorrentino v. Ronbet Co. · filed 1997-11-20

Denial of defendant’s pretrial motion for summary judgment pursuant to CPLR 3212 did not preclude the trial court from entertaining defendant’s motion pursuant to CPLR 4401 made during trial (Cushman & Wakefield v 214 E. 49th St. Corp., 218 AD2d 464, 468, appeal dismissed 88 NY2d 951, lv denied 88 NY2d 816), which was properly granted after plaintiff had completed presenting his evidence (cf., Page v City of New York, 79 AD2d 573; Goldstein v C. W. Post Ctr., 122 AD2d 196).

CPLR 3212(b) permits a court to deny a motion for summary judgment dismissing a complaint.

Fulfaro v. Makita U.S.A., Inc. · filed 1999-01-25(b)

Under the circumstances of this case, the Supreme Court properly denied the defendant’s motion (see, CPLR 3212 [b]).

A party that cross-moves for summary judgment submits the case for decision on the existing record and cannot later complain that the record was insufficient.

News America Marketing, Inc. v. Lepage Bakeries, Inc. · filed 2005-03-08

Significantly, defendant not only opposed plaintiffs summary judgment motion but cross-moved for dismissal of the complaint (CPLR 3212). By doing so, defendant represented not merely that the proof of record was inadequate to warrant judgment in plaintiffs favor, but that the evidence was sufficient to require summary dismissal. ... Having submitted an application for judgment on the record, defendant will not be heard to complain that the record was insufficient to support the disposition of its motion.

CPLR 3212 awards judgment on the merits as a matter of law, unlike a CPLR 3211(a)(7) motion that challenges a pleading without reaching the merits.

Hendrickson v. Philbor Motors, Inc. · filed 2012-12-12

The disposition is a contradiction in terms, as a successful CPLR 3211 (a) (7) motion will result in the dismissal of a complaint or other pleading without addressing the merits, while a successful CPLR 3212 motion awards judgment to the moving party on the merits as a matter of law.

Section 3212(g) permits a court denying summary judgment to specify undisputed facts that will be treated as established in the action.

Progressive Orthopedics, PLLC v. Hertz Corp. · filed 2017-06-02(g)

We note that in denying a motion for summary judgment, a court may, pursuant to CPLR 3212 (g), determine what facts are not in dispute or are incontrovertible . . . [and] make an order specifying such facts [which] shall be deemed established for all purposes in the action.' However, the order herein identified no particular facts as established" ( id. at 35-36).

CPLR 3212 (g) permits a court denying summary judgment to establish facts for all purposes in the action when the record supports doing so.

Forest Park Acupuncture, P.C. v. MABSTOA · filed 2017-12-29(g)

Rather, the Civil Court, in effect, made a finding for all purposes in the action, which CPLR 3212 (g) permits it to do upon the denial of a motion for summary judgment. Defendant correctly argues that plaintiff has not demonstrated that it should be found to be established for all purposes in the action that the bills at issue were timely and properly submitted to defendant. Consequently, the Civil Court's CPLR 3212 (g) finding that "plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission)" is vacated.

Section 3212(g) permits findings that narrow the issues for trial after summary judgment is denied; a party seeking to strike those findings must articulate a sufficient basis.

Metro Pain Specialist, P.C. v. Hertz Co. · filed 2019-12-13(g)

Contrary to defendant's contention, defendant fails to articulate a sufficient basis to strike the Civil Court findings, in effect pursuant to CPLR 3212 (g), in plaintiff's favor ( see EMC Health Prods., Inc. v Geico Ins. Co. , 43 Misc 3d 139 [A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

CPLR 3212(g) findings made after summary judgment is denied may stand when the appellant gives no sufficient basis to strike them.

Charles Deng Acupuncture, P.C. v. Hertz Co. · filed 2020-01-31(g)

Moreover, defendant failed to articulate a sufficient basis to strike the Civil Court's findings in plaintiff's favor ( see EMC Health Prods., Inc. v Geico Ins. Co. , 43 Misc 3d 139 [A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Section 3212 does not give a party an unconditional right to summary judgment based on an agreement made after the action began; the party may seek to plead the agreement in a supplemental complaint and then renew the motion.

Central Trust Co. v. Talley · filed 1967-05-01

This rule (CPLR 3212) provides among other things that a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. ... The problem here is whether or not proof of the subsequent agreement is competent and relevant on this motion when the agreement involves facts subsequent to the commencement of the third-party action. ... In view of the authorities cited I conclude that the motion should be denied, without prejudice to third-party plaintiff to obtain leave to serve a supplemental complaint, setting forth the subsequent amended agreement as a new cause of action, and then to move for summary judgment as she may be advised.

In paternity proceedings, summary judgment is available only for a defense established by documentary evidence or official records.

Glain v. Glain · filed 1968-07-16(d)

Accordingly I find that summary judgment may be applicable to paternity proceedings. However, because of the nature" of the proceedings I am of the opinion that the motion should be limited in the same manner as in matrimonial actions. Thus the motion should be available only to raise a defense establishing “ documentary evidence ” or “official records” (see CPLR 3212, subd. [d]).

Section 3212 permits parties to seek summary judgment in contested probate proceedings when no issue of fact requires a trial.

In re the Estate of Hollenbeck · filed 1969-11-14

The provisions of the CPLR are applicable to practice in the Surrogate’s Court (SCPA 102; CPLR 101); and the provisions of CPLR 3212 may be invoked by parties in contested probate proceedings, wherever otherwise appropriate.

Summary judgment is available in a contested probate proceeding when no triable issue of fact remains about the will’s execution.

In re the Estate of Daly · filed 1978-02-27

Recognizing that such relief is rarely granted, it is the law of this State that in an appropriate case the Surrogate may grant such relief in proceedings exactly the same as the matter now before the court. ... As a matter of law, no question of fact exists which can cure this substantial, substantive and fatal defect of due execution. Accordingly, the motion for summary judgment is granted, the petition for probate dismissed and preliminary letters heretofore granted are revoked.

Section 3212 permits summary judgment in a paternity proceeding when the procedure is appropriate and no material fact is disputed, despite the clear-and-convincing standard of proof.

Albany County Department of Social Services ex rel. Judy T. v. John T. · filed 1996-09-27(b)

While this search may be more exacting where the underlying action’s standard of proof is higher than the customary preponderance of the evidence, there is no inherent reason why a motion for summary judgment should not be available in a proceeding where the standard of proof is clear and convincing evidence.

Section 3212 permits summary judgment in Family Court article 10 child protective proceedings when no substantial factual issue requires a hearing.

Matter of Kevin G. · filed 2007-08-03

Summary judgment pursuant to C.P.L.R. §3212 is an appropriate procedure to utilize in Family Court Act article 10 child protective proceedings.

Section 3212 permits a written summary judgment motion in a summary proceeding, even if the movant calls it a motion for summary disposition.

1422 Corp. v. Rosenfeld · filed 2007-08-23

This point is made clear by CPLR 409 (b), which essentially acknowledges that as all summary proceedings do not go to trial quickly, the actual making of a written motion for summary judgment (CPLR 3212) is permitted. ... Therefore, although the petitioner couched the relief sought in the instant motion as one for summary disposition (CPLR 409), it is in fact a motion for summary judgment.

Section 3212 permits summary judgment in Family Court Act article 10 child protective proceedings when no material triable issue of fact remains.

Matter of Kathya V. · filed 2007-08-31

Summary judgment pursuant to C.P.L.R. §3212 is an appropriate procedure to utilize in Family Court Act article 10 child protective proceedings.

Section 3212 permits summary judgment in abuse and neglect proceedings when the submitted proof establishes a claim or defense as a matter of law.

In re Yamillette G. · filed 2009-02-06

It is well settled law that a motion for summary judgment is appropriate in neglect and abuse proceedings and should be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing summary judgment in favor of any party.

CPLR 3212 summary judgment procedures may be used to determine a violation of a temporary order of protection when the respondent does not object and the parties have a full evidentiary exchange.

Debra MM. v. Ralph MM. · filed 2009-04-30

As to the finding that he violated the temporary order of protection, Family Ct Act § 846-a permits such a finding only after an evidentiary hearing. However, the determination was made according to the established procedures of the CPLR, to which respondent did not object (see CPLR 3212). This proceeding involved a full evidentiary exchange, and both parties were represented by counsel.

Section 3212 permits summary judgment in Family Court neglect proceedings when no factual issue requires a trial.

In re Kailynn I. · filed 2016-05-03

There are factual issues regarding this allegation which could only be determined at a trial, namely what, if any, observations the respondent made as to any bump or swelling on Kailynn’s head each day and what the factors were that contributed to her decision about if, and when, medical attention was needed. Therefore, the motion for summary judgment is denied.

Section 3212 summary judgment standards require courts to view submissions in the light most favorable to the opposing party and apply to summary determinations under CPLR 409.

In re Brown · filed 2016-11-04

Similarly, a determination on the petitioners’ CPLR 409 application must be analyzed using CPLR 3212 summary judgment standards, which requires that the court view the submissions in a light most favorable to the respondent.

A declaratory judgment claim in a hybrid Article 78 proceeding and action must be resolved through a summary judgment motion under CPLR 3212 rather than the summary procedure for Article 78 claims.

Matter of Coma Realty Corp. v. Davis · filed 2021-12-22

However, since the petitioner/plaintiff challenged the ASIE law pursuant to CPLR 3001, the Supreme Court erred in employing the summary procedure of CPLR 409(b), and should have instead required the petitioner/plaintiff to move for summary judgment pursuant to CPLR 3212 ( see Matter of East W. Bank v L & L Assoc. Holding Corp. , 144 AD3d at 1033; Matter of Rosenberg v New York State Off. of Parks, Recreation, & Historic Preserv. , 94 AD3d at 1008).

Section 3212 permits summary judgment in a declaratory judgment action, but the action must proceed to trial when the facts are insufficient to declare either party’s rights.

Armstrong v. County of Onondaga · filed 1968-12-12

All of the material facts and circumstances should be fully developed before the respective rights of the parties may be adjudicated. While summary judgment is appropriate in an action for declaratory judgment (CPLR 3212) “When the facts presented in the pleadings or on a pretrial motion are not sufficient to permit a declaration for either party at that stage, the action must, of course, proceed to trial.”

Section 3212 permits summary judgment and partial summary judgment in declaratory judgment actions.

Law Research Service, Inc. v. Honeywell, Inc. · filed 1969-03-11

The summary judgment and partial summary judgment procedure has also been utilized in a declaratory judgment action (CPLR 3212; ...).

Section 3212 permits summary judgment in a declaratory judgment action when no factual issues remain and only a legal question requires resolution.

Hepper v. Town of Hillsdale · filed 1970-06-17

Within the framework of these pleadings the plaintiff moves for summary judgment (CPLR 3212) on the ground that no triable issue of fact has been raised and only a question of law is presented for resolution. I concur. ... and, in the absence of factual issues, summary judgment is available as a form of accelerating the determination of the controverted legal question.

Section 3212 permits dismissal of a declaratory judgment complaint on the defendant’s summary judgment motion when the matter turns solely on law and no factual issues remain.

Friedland v. Diamond · filed 1971-09-15

The defendants’ cross motion to dismiss the complaint (CPLR 3211) and for summary judgment (CPLR 3212) is granted. A complaint in an action for declaratory judgment may be dismissed upon granting defendant’s motion for summary judgment where the matter is determined solely as a matter of law and there are no factual issues to be resolved.

CPLR 3212(b) permits an appellate court to award summary judgment dismissing a complaint when a judicially noticed judgment establishes that the plaintiff cannot recover.

Longevity Med. Supply, Inc. v. Global Liberty Ins. Co. · filed 2020-05-08(b)

Upon taking such judicial notice, we award defendant summary judgment dismissing the complaint pursuant to CPLR 3212 (b) and dismiss as academic so much of the appeal as is from the portion of the Civil Court's order that denied defendant's motion for summary judgment ( see id. ; see also Maiga Prods. Corp. v Hertz Co. , 61 Misc 3d 132 [A], 2018 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

CPLR 3212 (g) permits a court to issue an order aiding disposition of an action after denying summary judgment, including an order limiting proof on a claim unsupported by the opposing party’s evidence.

Siewert v. Loudonville Elementary School · filed 1994-12-01(g)

Although the order of September 20, 1993 which denied defendants’ motion for summary judgment did not specify the facts deemed established, CPLR 3212 (g) also authorizes the court to make any order as may aid in the disposition of the action, and we are of the view that the order which granted defendants’ motion in limine is such an order.

Section 3212(e)(2) permits a court to stay or defer entry of a divorce judgment after granting summary judgment while other divorce claims and ancillary issues are resolved.

Lang v. Lang · filed 1985-06-10(e)(2)

Special Term should have exercised its power to stay or defer entry of an interlocutory judgment of divorce, pursuant to CPLR 3212 (e) (2), pending: (1) a trial on plaintiff’s two causes of action for divorce (Carian v Carian, 104 AD2d 434; Zaccai v Zaccai, 99 AD2d 830); and (2) determination of all ancillary issues, i.e., support, maintenance, custody, visitation, ownership and possession of the marital residence, insurance and equitable distribution, in light of plaintiff’s claims of fraud, duress and undue influence in the making of the separation agreement (Kennedy v Kennedy, 104 AD2d 488, supra; see also, Nemet v Nemet, 99 AD2d 828, appeal dismissed 62 NY2d 777; Peerce v Peerce, 97 AD2d 718).

CPLR 3212(e) permits a court to stay entry of an interlocutory judgment while ancillary issues are resolved when earlier entry would prejudice a party.

Kennedy v. Kennedy · filed 1984-08-27(e)

However, entry of an interlocutory judgment may be stayed, pursuant to CPLR 3212 (subd [e]), pending determination of all “ancillary issues” (see Nemet v Nemet, supra). ... We therefore conclude that, under the circumstances at bar, Special Term did not abuse its discretion in withholding entry of an interlocutory judgment pending resolution of all ancillary issues.

Section 3212(g) permits a court hearing a summary judgment motion to make an order that aids disposition of the action, including dismissal with leave to replead.

Atlas Credit Corp. v. Ezrine · filed 1969-07-02(g)

However, a motion for summary judgment “searches” the record, and it is apparent that the pleadings give adequate notice to the defendant of the underlying cause of action. On a motion for summary judgment "The court may make any order as may aid in the disposition of the action ” (CPLR 3212, subd. [g]; see CPLR 104). Therefore, it is in the interests of justice that the cause of action be dismissed with leave to plaintiff to replead (cf. CPLB 3211, subd. [e]).

On summary judgment, the court examines the proof to determine whether the causes of action have merit rather than testing the complaint’s sufficiency.

Carter v. Inter-Faith Hospital · filed 1969-09-02(b)

Concerning the motion by defendant National Blood Bank, Inc. for summary ¡judgment, although on such a motion the court does not test the* sufficiency of the complaint, it does look at all proof offered to determine whether the causes of action have merit. (CPLR 3212, subd. [b].)

Section 3212(b) permits dismissal on summary judgment when a full submission shows that the plaintiff has offered no proof of essential elements of its claim.

City of New York v. Pennsylvania Railroad · filed 1969-11-18(b)

Order entered on November 7, 1968, granting motion for summary judgment unanimously reversed on the law, and the complaint dismissed pursuant to CPLR 3212 (subd. [b]), with $50 costs and disbursements to the appellant. ... Since on a motion for summary judgment, a full submission and disclosure is incumbent, and these essential elements were not even touched upon, we perceive ... no justification for a further hearing or assessment, and we dismiss the complaint.

On a summary judgment motion, an unsupported denial may raise an issue when the facts are peculiarly within the moving party’s knowledge, but a party who failed to use available pretrial procedures cannot rely on an inability to contest specific allegations.

Aranow, Brodsky, Bohlinger, Benetar, Einhorn & Dann v. Silverman · filed 1971-12-14

We are mindful of the rule in summary judgment applications that where the facts are peculiarly within the knowledge of the moving party an issue may be raised by an unsupported denial. Here, however, the case has been at issue for an extended period and defendant has not sought to obtain the proof to support his denial by any of the allowable pretrial procedures. Defendant’s inability to contest the specific allegations is therefore chargeable to him.

CPLR 3212 permits a court to decide on summary judgment whether a writing is the complete and exclusive statement of the parties’ agreement.

Pennsylvania Gas Co. v. Secord Bros. · filed 1973-03-09

It is clear that a determination of whether or not a writing was intended as an exclusive statement of an agreement is a function of the court. The statute does not limit this determination to a trial of the issues. This court holds that such determination may properly be made upon a motion for summary judgment.

CPLR 3212 permits summary judgment dismissing cross complaints when uncontroverted affidavits show that the movant had no connection to the incidents at issue.

Koch v. Haven-Busch Co. · filed 1973-03-26

In our opinión, the uncontroverted claim in the affidavits submitted in behalf of appellant, that it had no connection with the incidents complained of and was erroneously named a defendant, entitled it to summary relief against the cross complaints.

Section 3212(b) requires a summary judgment motion to be decided on all the papers before the court; the moving party is not limited to the ground in its original affidavits.

Eagle Star Insurance v. International Proteins Corp. · filed 1976-02-10(b)

We know of no principle which would thereafter limit the moving party to the ground advanced in its original affidavits, particularly where the insurer itself contended that the theory of its complaint had been misapprehended. An application for summary judgment is to be determined on all the papers before the court (CPLR 3212, subd [b]).

Section 3212(b) requires a defendant seeking summary judgment on a serious-injury defense to establish the defense as a matter of law; unresolved factual questions go to trial.

Sanders v. Rickard · filed 1976-03-11(b)

We conclude that, assuming that a plaintiff has made sufficient allegations of serious injury under CPLR 3016 (subd [g]) to withstand a motion to dismiss under CPLR 3211 (subd [a]) and that the defense is not established to a sufficient degree to warrant the court as a matter of law to direct judgment in favor of defendant under CPLR 3212 (subd [b]) the resolution of any question of fact as to whether plaintiff has suffered a "serious injury” within paragraph (a) of subdivision 4 of section 671 of the Insurance Law should await the trial (Snyder v Laffer, 81 Misc 2d 814; see, also, Colenzo v Kernan, 49 AD2d 809, supra; contra, Sullivan v Darling, supra).

Section 3212(b) requires summary judgment motions to be decided on affidavits and other supporting proof served with the motion papers.

Muka v. Sturgis · filed 1976-06-03(b)

Special Term committed no error in refusing to take evidence proffered by petitioner at the hearing of respondents’ motion to dismiss and petitioner’s motion for summary judgment. Petitioner misconstrues the thrust of CPLR 3212 (subd [b]). Motions are decided on the affidavits and other supporting proof served with the motion papers (CPLR 2214, subd [c]; Jenkins v Warren, 25 App Div 569).

A corporate fiduciary seeking summary judgment must present documentary evidence that negates the issues beyond all question.

Russo v. Zaharko · filed 1976-06-21

For such a party to be granted summary judgment, the documentary evidence must negate the issues beyond all question.

Section 3212(b) authorizes a court to grant summary judgment with declaratory, injunctive, and reimbursement relief.

Perloff v. Melton · filed 1976-12-13(b)

Accordingly, as authorized by CPLR 3212 (subd [b]), the court will grant a summary judgment which will (1) declare that the newly promulgated subchapter M of the commissioner’s regulations is invalid, (2) permanently enjoin the enforcement thereof and (3) direct the defendant commissioner to forthwith reimburse the plaintiff for the sum of $4.50 which was unlawfully assessed against her.

Section 3212 requires a party seeking summary judgment to establish the facts needed for judgment.

Clinic v. Nelson R. · filed 1977-03-29

Given the rule of liability of a husband for necessaries and the limited scope of what constitutes necessaries, it cannot be determined that plaintiff has met its burden of establishing that the services rendered constituted necessaries. There is no allegation that the abortion was necessary because of an illness which for medical reasons dictated the surgical procedure. Instead, as suggested by the affidavit of the defendant Nelson R, the abortion was performed as a birth preventive measure. Under such circumstances, plaintiff has not demonstrated that the services rendered were a necessary, and its motion for summary judgment is denied as against Nelson R.

Section 3212(c) permits a factual hearing on a disputed issue raised by summary judgment motions.

Umlauf v. County of Erie · filed 1977-07-12(c)

Since the court and the plaintiff proceeded .upon the erroneous assumption that they were estopped and did not directly address the question upon the return of the summary judgment motions, we remit this matter for a factual hearing on the single issue of whether the infant was a ward of Erie County at the time of his injury (see CPLR 3212, subd [c]).