N.Y. C.P.L.R. § 3212

A motion under section 3212 based on a defendant’s failure to answer may be treated as an application for default judgment under CPLR 3215.

Escudero Construction Inc. v. Huck · filed 1977-12-16

A motion for summary judgment was made before this court pursuant to CPLR 3212 basically upon the ground that the defendant is in default in failing to answer a complaint. At the time the motion was made, less than a year had elapsed from the default so that plaintiff’s proper procedure was to have appeared before the clerk of the court pursuant to CPLR 3215 (subd [a]). The motion was finally submitted to this court on December 12, 1977 and more than a year has elapsed since the default. This court will now consider the motion to have been made pursuant to CPLR 3215 as an application to the court for judgment.

On a CPLR 3212 summary judgment motion, a party must tender admissible proof supporting every element of the alleged cause of action.

Simcuski v. Saeli · filed 1978-05-04

... on motions for summary judgment under CPLR 3212 evidentiary proof in admissible form must be tendered in support of all the elements of the alleged cause of action.

CPLR 3212(b) permits a court to consider materials on a summary judgment motion even if they were not attached to the pleading.

Research Institute of America, Inc. v. Department of Taxation & Finance · filed 1979-02-27(b)

On the instant motion, an affidavit from counsel at the Law Bureau of the Department of Taxation and Finance (who does not dispute that the copies were received) urges that plaintiffs failure to annex the exhibits to its complaint made it "impossible” for defendant to respond to this summary judgment motion, and that "since the publication^] referred to in plaintiffs affidavits were not included in the pleading, they may not be considered on this motion.” First, this contention is erroneous. (CPLR 3212, subd [b].)

Under CPLR 3212(b), a defendant seeking summary judgment must establish a defense sufficient to warrant judgment in its favor as a matter of law.

Lo Tempio v. Safeco Insurance of America · filed 1979-07-06(b)

On the record as submitted, it cannot be said that defendant has established any defense "sufficiently to warrant the court as a matter of law” to direct judgment in its favor (CPLR 3212, subd [b]).

Section 3212(g) permits an order on a summary judgment motion that limits the amount recoverable at trial, even when that limit cannot be entered as a judgment.

Guard-Life Corp. v. S. Parker Hardware Manufacturing Corp. · filed 1980-05-01(g)

While a holding to the effect that a verdict may not be more than a stated amount does not lend itself to the form of an award of judgment on this motion for summary judgment, it may properly be included in an order aiding in the disposition of the action as authorized by CPLR 3212 (subd [g]).

Section 3212 requires both parties to lay bare their evidence on a summary judgment motion.

El Chami v. Automatic Burglar Alarm Corp. · filed 1980-12-15(b)

Since both parties must lay bare their evidence, the court finds the agreement without infirmities and the absence of liability of the Company.

CPLR 3212 calls for parties to submit evidence and proof supporting or opposing a summary judgment motion.

Neulist v. County of Nassau · filed 1981-03-05

To grant this request by plaintiff would fly in the face of the clear intent of CPLR 3212, which exhorts the parties to submit evidence and proof in support of and in opposition to the motion. Consequently, plaintiff’s cross motion is denied.

CPLR 3212 permits an appellate court to grant summary judgment to a respondent when the appellant submits the merits for decision and requests a declaration.

County of Nassau v. Metropolitan Transportation Authority · filed 1982-05-03

On this appeal the plaintiff-appellant has addressed the substantive issues on the merits and requests that this court make the declaration requested in the complaint. Accordingly, the plaintiff has charted a course which permits this court, after review of the record, to grant summary judgment, pursuant to CPLR 3212, in favor of the defendant-respondent on the merits.

Section 3212(b) permits summary judgment when a written agreement presents a question of law and no triable issue of fact remains.

Marinas of Future, Inc. v. City of New York · filed 1982-06-08(b)

There are no triable issues of fact. All necessary facts are before the court, demonstrating that the provisions respecting renewal constitute merely an agreement to agree, too indefinite to be judicially enforceable. Hence, defendants are entitled to summary judgment dismissing the first three causes of action, to wit: the first cause of action for a declaration in favor of plaintiff on the validity of the agreement, the second cause of action for an injunction, and the third cause of action for specific performance.

Section 3212(b) requires admissible evidence to support summary judgment, and an opponent must produce admissible evidence showing a triable issue of fact.

Spearmon v. Times Square Stores Corp. · filed 1983-07-18(b)

In their opposing papers, plaintiff and TSS did not submit evidentiary proof in admissible form to the contrary. Instead, they submitted affirmations from counsel who argued that Quaker State had a duty to warn TSS not to negligently stack the cartons. These affirmations had no probative value and, under the circumstances, failed to raise a triable issue of fact as to Quaker State’s liability.

On a CPLR 3212 motion or cross motion, the court identifies material triable issues of fact rather than deciding them.

University Mews Associates v. Jeanmarie · filed 1983-11-25

Finally, upon a CPLR 3212 motion or cross motion for summary judgment, this court’s role is the finding, not determination of material triable issues of fact.

Section 3212 permits summary judgment on liability when no triable issue of fact remains, with damages determined at a later hearing.

Handa v. Handa · filed 1984-07-16

Accordingly, the plaintiff wife’s motion for summary judgment is granted and the matter is remitted to the Supreme Court, Dutchess County, for a hearing on the issue of damages.

Summary judgment may be granted on a defense added by an amendment allowed at the same time, or on an unpleaded defense when reliance on it neither surprises nor prejudices the plaintiff.

Igbara Realty Corp. v. New York Property Insurance Underwriting Ass'n · filed 1984-12-18

This relief is not barred by the fact that it is granted simultaneously with leave to amend to assert the defense on which summary judgment is based; a court may even grant summary judgment “based upon an unpleaded defense where reliance upon that defense neither surprises nor prejudices the plaintiff (see Herbert F. Darling, Inc. v City of Niagara Falls, 69 AD2d 989, 990; see, also, Esa v New York Prop. Ins. Underwriting Assn., 89 AD2d 865; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:10, C3212:11).” (Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713; emphasis added.)

Section 3212 permits a court to rule that a defense is unavailable even when factual issues prevent full summary judgment.

Dziadiw v. 352 State Street Corp. · filed 1985-01-31(g)

Consequently, as an aid in the disposition of this action, we conclude that defendant may not rely upon any defense based upon its failure to comply with the contingency clause contained within the contract (see CPLR 3212, subds [b], [g]; Siegel, NY Prac, § 282, p 339; cf. E. B. Metal & Rubber Inds. v County of Washington, 102 AD2d 599, 603).

CPLR 3212(b) requires a party seeking summary judgment to establish its claim or defense sufficiently to warrant judgment as a matter of law.

Tagliaferro v. Tagliaferro · filed 1986-01-13(b)

In view of these circumstances, we agree with Special Term that the appellants failed to establish their defense "sufficiently to warrant the court as a matter of law in directing judgment in [their] favor” (CPLR 3212 [b]; Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261).

On a defendant’s summary judgment motion, the court views the facts most favorably to the plaintiff and denies the motion when factual questions require resolution.

Montgomery v. Orr · filed 1986-01-30

Under the principle that all facts must be viewed most favorably to the plaintiff on a defendant’s motion to dismiss, it is necessary to deny defendants’ motions at this time.

On a motion for summary judgment under CPLR 3212, a party alleging intentional fraud must offer admissible proof of every element and establish the fraud by clear and convincing evidence.

Valenti v. Trunfio · filed 1986-03-18

... third, all elements of the intentional fraud must be established by clear and convincing proof on motions for summary judgment under CPLR 3212. Evidentiary proof, in admissible form, must be tendered in support of all elements of the alleged cause of action.

CPLR 3212(g) permits a court to grant or deny summary judgment in part and make orders that aid disposition of the action.

Yost v. Blue Cross & Blue Shield of Central New York, Inc. · filed 1988-04-08(g)

CPLR 3212 (g) empowers the court to deny or grant a motion for summary judgment in part, ascertain what facts are not in dispute or are incontrovertible, make an order specifying such facts, and "make any order as may aid in the disposition of the action” (see, E. B. Metal & Rubber Indus, v County of Washington, 102 AD2d 599, 603). This is what the court has done.

Section 3212(b) permits dismissal of claims that lack a legal basis, while factual disputes preclude summary judgment on other claims.

Greenwood Packing Corp. v. Associated Telephone Design, Inc. · filed 1988-05-02(b)

The Supreme Court therefore erred in dismissing the complaint pursuant to CPLR 3211 (a) (1), although dismissal of the plaintiffs causes of action for attorney’s fees and for punitive damages was otherwise appropriate (CPLR 3212 [b]). ... Our search of the record reveals, however, that issues of fact exist which preclude summary determination of the plaintiffs claim that it is entitled to the return, in full, of its conditionally tendered payment.

Section 3212(b) requires a defendant seeking summary judgment to establish as a matter of law that the plaintiff’s cause of action lacks merit.

Greiner-Maltz Co. v. Kalex Chemical Products, Inc. · filed 1988-07-05(b)

In order for the defendant to obtain summary judgment, it is necessary for it to establish, as a matter of law, that the plaintiff’s cause of action is without merit (CPLR 3212 [b]).

On a summary judgment motion, the court identifies factual issues rather than deciding them; a material factual issue requires a trial.

Brown, Harris, Stevens, Inc. v. Rosenberg · filed 1989-12-14

The function of the court on a motion for summary judgment is issue finding and not issue determination (Esteve v Abad, 271 App Div 725). Contrary to defendants’ contentions, sufficient issues of fact exist as to whether plaintiff was the procuring cause of the sale (Greene v Heilman, 51 NY2d 197) so as to require a trial.

Section 3212(b) requires a summary judgment movant to submit admissible evidence sufficient to warrant judgment as a matter of law.

Wagner v. Modulars By Design, Inc. · filed 1990-07-05(b)

To prevail as a matter of law, it is incumbent upon the moving party in the first instance to tender evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor (CPLR 3212 [b]).

Section 3212 permits summary judgment on a contract’s meaning when the moving party’s interpretation is the only fair and reasonable one, even if the court considers extrinsic evidence.

Wing Ming Properties (U.S.A.) Ltd. v. Mott Operating Corp. · filed 1990-08-30

Although consideration of extrinsic evidence generally involves fact-finding, under certain circumstances the court may grant summary judgment in an action concerning construction of a contract, based upon an analysis of the disputed document and extrinsic evidence offered.

CPLR 3212(b) permits summary judgment when the movant establishes entitlement to judgment as a matter of law and the opposing party raises no issue of fact requiring trial.

Chase Lincoln First Bank v. Mark Homes, Inc. · filed 1991-02-01(b)

Plaintiff met its burden to establish its cause of action "sufficiently to warrant the court as a matter of law in directing judgment” in plaintiffs favor (CPLR 3212 [b]). Both defendants acknowledged that they had executed the personal guarantees and neither defendant submitted evidence sufficient to require a trial of any issue of fact.

Under CPLR 3212(b), a summary judgment movant must present admissible evidence justifying judgment; the opponent must then raise a triable issue of fact or sufficiently excuse the absence of proof.

Home & City Savings Bank v. Rose Associates · filed 1991-07-11(b)

To prevail on a summary judgment motion, it is incumbent upon the moving party to tender evidentiary proof in admissible form sufficient to justify the direction of the drastic remedy of summary ... judgment in the movant’s favor (CPLR 3212 [b]).

CPLR 3212 requires the court to search the record and assess the sufficiency of the underlying evidence on summary judgment.

Lewis v. Hertz Corp. · filed 1992-03-10

The issue presented by the instant motion and cross-motion was not that of a motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action, which merely addresses the sufficiency of pleadings, but a motion for summary judgment pursuant to CPLR 3212, which searches the record and looks to the sufficiency of the underlying evidence (Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467).

Section 3212(b) shifts the burden to the opposing party to show a triable issue of fact once the movant establishes entitlement to judgment as a matter of law.

Brancati v. Bar-U-Farm, Inc. · filed 1992-05-14(b)

Turning now to defendant’s summary judgment motion, it is well established that on such a motion, to the extent that the movant has satisfied its initial burden of establishing the claim or defense "sufficiently to warrant the court as a matter of law in directing judgment in [its] favor” (CPLR 3212 [b]), the burden shifts to the opponent to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]). Assuming that defendant’s submissions satisfied its initial burden, in our view the evidence submitted by plaintiffs established the presence of factual issues requiring trial.

Under CPLR 3212(b), a movant must show entitlement to summary judgment as a matter of law; the opposing party must then present admissible evidence of a triable issue of fact.

Goldstein v. Town of Liberty · filed 1993-01-07(b)

We initially determine that this evidence was sufficient for defendants to meet their burden of demonstrating their entitlement to summary judgment as a matter of law (see, CPLR 3212 [b]; Graff v Amodeo, 178 AD2d 901, 902). Having done so the burden shifted to plaintiff to produce evidence in admissible form establishing the existence of a triable issue of fact (see, Batinkoff v Batinkoff, 173 AD2d 929, 930; Du Pont v Town of Horseheads, 163 AD2d 643, 644).

Section 3212 permits summary judgment only when no triable issue of fact remains; an attorney affirmation made without personal knowledge has no probative value on the motion.

Puritan Insurance v. Continental Casualty Co. · filed 1993-07-01

In this declaratory judgment action between insurers of a mutual insured, Pyrolac Corporation, the IAS Court properly determined that summary judgment in defendant Continental’s favor was precluded by triable issues of fact as to whether the parties had entered into an oral cost-sharing agreement wherein Continental agreed to reimburse plaintiff Puritan for Continental’s proportional share of the costs incurred by Puritan in the defense and indemnification of their mutual insured for environmental claims, where, as here, the only evidence proffered by Continental in support of its summary judgment motion is an affirmation by its attorney, made without personal knowledge of the facts, which has no probative value on a summary judgment motion (Zuckerman v City of New York, 49 NY2d 557, 563), rather than Don Peterson, with whom it is alleged the agreement was made, and where Puritan, by the submission of copies of three checks issued by defendant Continental to Puritan for reimbursement for costs incurred by Puritan in the defense and indemnification of Pyrolac and a letter from Continental’s representative acknowledging Continental’s coverage obligations to the parties’ mutual insured, has raised a triable issue as to whether the parties manifested a mutual intent to be bound by an oral cost-sharing agreement (Bauman Assocs. v H & M Intl. Transp., 171 AD2d 479).

Once a movant establishes entitlement to summary judgment, the opposing party must show a factual issue requiring trial or offer an acceptable excuse for failing to do so.

Louis Hackmeyer, Inc. v. New Warsaw Bakery, Inc. · filed 1993-10-25(b)

Contrary to the defendants’ contentions, the plaintiffs sufficiently established their causes of action to warrant judgment in their favor (see, Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; CPLR 3212 [b]). ... Upon the plaintiffs’ successful demonstration of their entitlement to judgment, the burden shifted to the defendants to demonstrate the existence of a factual issue requiring a trial of the action or to tender an acceptable excuse for their failure to do so (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

A summary judgment movant must initially establish entitlement to judgment as a matter of law with admissible evidence.

I.P.L. Corp. v. Industrial Power & Lighting Corp. · filed 1994-03-11(b)

Plaintiff had the initial burden to establish entitlement to judgment as a matter of law by tender of evidentiary material in admissible form (see, CPLR 3212 [b]).

Section 3212(b) does not require denial of a summary judgment motion for failure to attach prior pleadings when the pleadings are available in the court file and the opposing party received the amended answer.

Realty Development Co. v. Jackson · filed 1995-11-08(b)

Counsel argues that the motion should be "dismissed” ("denied” is proper) because pursuant to CPLR 3212 (b), all previous pleadings were not annexed thereto. This argument is mere subterfuge, relying on hypertechnicality. The only pleadings are the notice of petition and petition and the amended answer, which are in the court file and can be easily referenced. Moreover, petitioner has acknowledged receipt of the amended answer.

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law; the opposing party must then present evidence of a triable issue of fact.

Carroll v. St. Anthony's High School · filed 1996-04-08(b)

The defendant demonstrated its entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, supra, at 562) and the plaintiff failed to proffer any evidence to establish the existence of triable issues of fact.

Section 3212(b) permits summary judgment when the movant establishes entitlement to judgment as a matter of law and the opponent fails to raise a triable issue of fact.

Soroka v. Budget Rent-A-Car Corp. · filed 1996-08-12(b)

In opposing Budget’s motion plaintiffs failed to submit competent proof to raise a triable issue of fact as to whether the accident was caused by a defect in the vehicle. Under the circumstances, summary judgment should have been granted to Budget.

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law; the opponent must then produce admissible evidence of a triable issue of fact.

Smith v. County of Nassau · filed 1996-10-15(b)

The Town demonstrated its entitlement to judgment in its favor as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562, supra). In response, the plaintiffs failed to proffer any evidence to show the existence of triable issues of fact.

CPLR 3212(f) permits denial of summary judgment when facts needed to resolve the motion remain unavailable.

U.S. Reinsurance Corp. v. Humphreys · filed 1997-06-17(f)

Defendant’s motion for summary judgment dismissing the complaint was properly denied because there are issues of fact relevant to whether the information plaintiff seeks to enjoin defendant from disclosing constitutes trade secrets, and because of the refusal of defendant and his supervisor at his ...former employer to discuss the nature of the latter’s products on which defendant had worked (see, CPLR 3212 [f]).

Section 3212(b) permits summary judgment on liability when the undisputed facts leave no triable issue.

Moore v. Tappen · filed 1997-09-08(b)

Further, under these circumstances, where it was undisputed that the plaintiff was a passenger in a parked car at the time of the occurrence and the truck operated by the defendant Ronald Tappen collided with the car, there are no triable issues of fact (see, CPLR 3212 [b]) as to whether the defendants Tappen and Magazine Distributors, Inc., were liable for the accident.

Under CPLR 3212(b), a defendant seeking summary judgment must first establish a defense sufficient to warrant judgment as a matter of law; the plaintiff must then raise a triable issue of fact.

Gray v. Forest City Enterprises, Inc. · filed 1997-11-19(b)

Defendants met their initial burden to establish their defense “ ‘ “sufficiently to warrant the court as a matter of law in directing judgment” in [their] favor’ ” (Zuckerman v City of New York, 49 NY2d 557, 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068, quoting CPLR 3212 [b]), and plaintiffs failed to raise a triable issue of fact.

Under CPLR 3212(b), summary judgment is proper when the movant establishes entitlement to judgment as a matter of law and the opposing party fails to show a triable issue of fact.

Newman v. Gobes · filed 1997-12-01(b)

The defendant demonstrated his entitlement to judgment in his favor as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). In response, the plaintiff failed to proffer any evidence to show the existence of triable issues of fact. Under the circumstances, summary judgment was properly granted to the defendant.

Section 3212 places the initial burden on a summary judgment movant to show entitlement to judgment as a matter of law.

Hamond v. Marks Shron & Co. · filed 1998-04-13

In moving for summary judgment, Marks Shron & Company met its initial burden by demonstrating that it had no contract or relationship with Hamond (see, CPLR 3212; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; see also, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

Section 3212(b) permits a party’s sworn investigatory deposition testimony to support a motion for summary judgment as an admission.

State v. Metz · filed 1998-04-14(b)

The depositions of the defendants obtained pursuant to General Business Law §§ 352 and 354 are clearly admissions of those parties and allowable as supporting proof on a motion for summary judgment under CPLR 3212 (b).

Section 3212 requires a party seeking summary judgment to establish entitlement to judgment as a matter of law; a factual dispute about contractual performance prevents judgment.

American Motorists Insurance v. Schindler Elevator Corp. · filed 1998-05-26

The plaintiff has not met its burden of showing that, as a matter of law, the defendant breached the subject contract (see, CPLR 3212). ... Therefore, because there is evidence that the defendant may have complied with the contract, summary judgment should not have been granted to the plaintiff.

Section 3212(b) requires a summary judgment movant to submit enough evidence to establish entitlement to judgment and show that the opposing party’s affirmative defenses lack merit.

Harte v. Trapani · filed 1998-05-26(b)

The defendant has not met his burden of demonstrating his right to judgment as a matter of law (see, CPLR 3212). Additionally, the defendant’s submissions were insufficient to find that the plaintiffs’ affirmative defenses were meritless (see, CPLR 3212 [b]).

Section 3212 does not permit summary judgment based on a client’s signature on a release when disputed facts leave the attorney’s burden of proving its validity unmet.

Swift v. Choe · filed 1998-06-04

Nor does Carl’s execution of the release on December 20, 1991 warrant dismissal under CPLR 3212. ... Plaintiff has asserted that (1) Carl’s severe vision problems would have prevented him from deciphering the contents of the release before signing it, and (2) the attorney failed to explain the contents of the release to Carl on December 20, 1991. In view of these allegations as well as the circumstances of the transaction, Carl’s signature on the release cannot alone satisfy defendants’ burden.

Section 3212(b) requires a summary judgment movant to establish an initial entitlement to judgment with evidence.

Busterna v. Branch Office Associates · filed 1998-09-28(b)

Since the defendant offered evidence that it did not have notice of the allegedly dangerous condition, it sustained its initial burden, of establishing entitlement to summary judgment (see, CPLR 3212 [b]; see also, Zuckerman v City of New York, 49 NY2d 557, 562).

Under CPLR 3212(b), a summary judgment movant must establish its entitlement to judgment as a matter of law.

Sacchetti v. Vasile Construction Corp. · filed 1998-10-02(b)

Tambe failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Malecki v Wal-Mart Stores, 222 AD2d 1010; Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 940; Stimson v Lapp Insulator Co., 186 *778AD2d 1052, 1053).

On a summary judgment motion, the proponent must first show sufficient evidence that no genuine issue of fact exists.

Crannell v. Kim · filed 1998-11-19(b)

It is axiomatic that in a summary judgment motion, the proponent bears the initial burden of setting forth sufficient evidence to prove, as a matter of law, that no genuine issue of fact exists ... Contrary to the conclusion of Supreme Court that a finding of vicarious liability against GFH was precluded by the acknowledgment of both GFH and Kim that Kim was an independent contractor, we find that Kim failed, by his showing, to eliminate issues related to GFH’s control over his work or whether medical care was sought directly from him or from GFH.

On a CPLR 3212 motion, affidavits or documents showing that a cause of action may exist can prevent its dismissal even if the complaint does not specifically allege it.

Johnson City Central School District v. Fidelity & Deposit Co. of Maryland · filed 1999-07-01

A complaint will not be dismissed for failure to state a cause of action under CPLR 3211 (a) (7) where affidavits or other documentary evidence submitted by the plaintiff demonstrate that a cause of action may exist ... That rule has been applied to cases in which summary judgment dismissing the plaintiff’s complaint has been sought under CPLR 3212 ... Consequently, defendant’s motion should have been denied to that extent.

Section 3212 permits summary judgment on liability when a prior determination has preclusive effect and no distinct triable issue remains.

Pratt v. State · filed 1999-07-06

The State has not alleged a distinct legal identity or issue in the Court of Claims which might otherwise raise a triable issue of fact precluding a grant of summary judgment. As a result, the claimant’s motion will be granted.

An unpleaded defense may be considered on a CPLR 3212 motion if the opposing party does not object and suffers no surprise or prejudice.

Allen v. Matthews · filed 1999-11-24

To conclude, as we do, that Supreme Court properly entertained defendant’s Statute of Limitations claim in the context of its CPLR 3212 motion does not end the inquiry.

On a summary judgment motion based on lack of notice, the defendant must establish the absence of notice as a matter of law, and the plaintiff must raise a triable issue of fact.

Argentina v. Southland Corp. · filed 1999-11-29(b)

On a motion for summary judgment dismissing the complaint based on lack of notice, a defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, Dwoskin v Burger King Corp., 249 AD2d 358; Gordon v Waldbaum, Inc., 231 AD2d 673). ... The evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendants either created the hazardous condition or had actual or constructive notice of the condition.

CPLR 3212 permits summary judgment on liability when the plaintiff establishes a prima facie case and the defendant fails to raise a triable issue of fact.

Tricoli v. Malik · filed 2000-01-18

The defendant’s MV-104 form, which alleges only that the plaintiff’s car stopped suddenly, is insufficient to raise a triable issue of fact (see, Leal v Wolff, supra; Silberman v Surrey Cadillac Limousine Serv., 109 AD2d 833).

When factual issues exist on a summary judgment motion, the court must deny the motion rather than appoint a referee to resolve them.

In re Bank of New York · filed 2000-02-01(b)

Thus, if it was the court’s perception that factual issues existed, there was an obligation to deny the motions, not to direct the appointment of a Referee (CPLR 3212 [b]; Southern Assocs. v United Brands Co., 67 AD2d 199, 201; Esteve v Abad, supra).

Under CPLR 3212(b), testimony can establish a fact as a matter of law, while unverified, unsworn reports about conditions elsewhere may fail to raise a triable issue.

Smith v. Leslie · filed 2000-03-13(b)

Contrary to the plaintiff’s contention, the defendant established as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562) that there was continuing precipitation at the time of the accident by offering the plaintiff’s testimony that there had been snow, hail, and freezing rain conditions all day. In opposition, the plaintiff submitted unverified, unsworn climatological reports of conditions existing at John F. Kennedy International Airport, two counties away from the defendant’s residence. These submissions were insufficient to raise a triable issue of fact regarding the weather conditions in Brent-wood at the time of the accident.

Section 3212(b) requires the party opposing summary judgment to raise a triable issue of fact once the moving party makes a prima facie showing.

Wojas v. Cossentino · filed 2000-04-17(b)

The affirmed reports prepared by the defendants’ experts, which were submitted in support of the motion, made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of the plaintiffs expert failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212 requires a court deciding a summary judgment motion to consider evidentiary material in addition to the pleadings.

Drexler v. Highlift, Inc. · filed 2000-11-06

The court, moreover, failed to consider evidentiary material in addition to the pleadings, as it must do on a motion for summary judgment (see, CPLR 3212).

Section 3212(b) requires parties moving for or opposing summary judgment to support their positions with competent evidence, such as affidavits or depositions.

Agrusa v. Town of Liberty · filed 2000-12-01(b)

On a motion for summary judgment each side is obligated to come forward with proof by way of affidavits, depositions, written admissions or other similar competent evidence (CPLR 3212 [b]). ... In this regard the court will not consider the purported evidence of one John Lennon, referred to in the plaintiffs’ memorandum of law, there being no affidavit from or deposition of Mr. Lennon attached to any of the papers submitted on the motion.

Under CPLR 3212(b), once the moving party shows entitlement to summary judgment as a matter of law, the opposing party must raise a triable issue of fact to defeat the motion.

Glazer v. LoPreste · filed 2000-12-04(b)

Upon a prima facie showing by the real estate agents of their entitlement to summary judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact to defeat the motion (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212 permits a court to search the record on a summary judgment motion and consider a party’s request for relief even when that party has not filed a cross-motion.

Nassau County v. Bigler · filed 2001-11-13

Although the defendant has not served or filed a notice of cross-motion, rendering her request for the return of the car procedurally defective ( Vanek v Mercy Hosp ., 135 AD2d 707), the Court is able to search the record on the County s summary judgment motion and considers such request in that context. CPLR 3212.

Section 3212(b) requires a court deciding summary judgment to use the motion papers and supporting evidence, rather than its subjective memory of the litigation.

La Bier v. La Bier · filed 2002-02-28(b)

Family Court lacked authority to decide the motion in a manner inconsistent with CPLR 3212 and established legal precedent. ... Since traditional summary judgment standards have been repeatedly utilized in matters of this nature ... the court’s use of the entire case record as well as its subjective “historical memory” was patently improper.

Section 3212 does not permit a court to resolve witness credibility when deciding a summary judgment motion.

Baseball Office of the Commissioner v. Marsh & McLennan, Inc. · filed 2002-05-14

What is involved is an issue of credibility, which may not be resolved by the court to reach a determination on a motion for summary judgment.

Section 3212(b) requires a summary judgment movant to establish an initial entitlement to judgment as a matter of law.

Chisholm v. Mahoney · filed 2003-02-20(b)

While defendants met their initial burden to have judgment awarded as a matter of law (see CPLR 3212 [b]) by their proffer of the police report, the deposition of defendant, and the affirmation of Matthew Leach, a passenger in defendant’s car who confirmed the sudden and unexpected appearance of plaintiff’s vehicle, plaintiff’s submission in response was determinative.

CPLR 3212(b) allows summary judgment on liability when the plaintiff makes a prima facie showing and the remaining factual disputes concern only damages.

J & J Air Freight Trucking Co. v. Danzas Corp. · filed 2003-03-17(b)

The plaintiff made a prima facie showing of entitlement to summary judgment on the issue of liability on its cause of action alleging breach of contract against Danzas Corporation (see CPLR 3212 [b]). To the extent that Danzas Corporation raised issues of fact in opposition to the motion, such issues relate only to the amount of damages to which the plaintiff will be entitled.

Under section 3212(b), a defendant meets its initial summary judgment burden by offering evidence that it neither created nor had actual or constructive notice of the alleged dangerous condition.

Cooper v. Town of Huntington · filed 2003-04-28(b)

Since the respondents offered evidence that they neither created nor had actual or constructive notice of the allegedly dangerous condition, they sustained their initial burden of establishing entitlement to summary judgment (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Under CPLR 3212, a summary judgment movant must show entitlement to judgment, and the opposing party must raise a triable issue of fact.

Palisi v. Barrett Heating & Air Conditioning Co. · filed 2003-11-03

Here, the defendants made a prima facie showing that they were not negligent. In opposition, the plaintiffs failed to raise a triable issue of fact. Thus, the Supreme Court should have granted the motion for summary judgment (see CPLR 3212).

On a CPLR 3212 summary judgment motion, the court considers the proof in the light most favorable to the nonmoving party.

Visentin v. Haldane Central School District · filed 2004-02-13

On this motion for summary judgment, the court will consider, as it must, the proof in the light most favorable to plaintiff (Museums at Stony Brook v Village of Patchogue Fire Dept., 146 AD2d 572 [2d Dept 1989]).

On a summary judgment motion, a party must bring forward any factual claims it considers relevant; if none are disputed, the court may decide the motion on the merits.

Carr v. Champagne Trucking · filed 2004-02-19(b)

Were there any other factual claims either party thought relevant to disposition of this summary judgment motion, it was incumbent upon that party to bring them forward (CPLR 3212[b]). There being none, disposition of this summary judgment motion on the merits is appropriate.

Section 3212 requires the court to identify factual issues on summary judgment, not decide them or assess credibility.

Smith v. Vindigni · filed 2004-03-02

The court's role in a motion for summary judgment is issue finding, not issue determination. Nor is a motion for summary judgment the correct juncture to determine issues of credibility.

Section 3212(b) permits a court to resolve a summary judgment motion on a necessary issue raised in the motion papers even if the parties did not focus on it.

Welch v. De Cicco · filed 2004-07-15(b)

In any event, given that the existence of “a dangerous or defective condition ... of which defendants had actual or constructive notice” was a necessary finding in order to hold defendants liable on the claims involved in defendants’ summary judgment motion, Supreme Court properly resolved defendants’ cross motion on the issue of notice (Hammarberg v Harley Rendezvous, 305 AD2d 895, 896 [2003]; see CPLR 3212 [b]; Webster v Ragona, 7 AD3d 850, 855 [2004]; cf. Dunham v Hilco Constr Co., 89 NY2d 425, 429-430 [1996]).

A summary judgment movant must first establish entitlement to judgment as a matter of law.

Commissioners of State Insurance Fund v. Albany Capitaland Enterprises, Inc. · filed 2005-05-05(b)

As movant, plaintiff satisfied its initial burden of establishing entitlement to judgment as a matter of law (see CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]).

Under CPLR 3212(b), once a movant makes a prima facie showing of entitlement to summary judgment, the opposing party must offer admissible evidence raising a triable issue of fact.

Staten Island Molesi Social Club, Inc. v. Nautilus Insurance · filed 2007-04-24(b)

Nautilus offered no admissible evidence sufficient to raise a triable issue of fact to defeat the Molesi Club’s prima facie showing of entitlement to judgment as a matter of law on the issue of its duty to defend (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Firemen’s Ins. Co. of Washington, D.C. v 860 W. Tower, 246 AD2d 401 [1998]).

CPLR 3212 does not authorize a court to grant summary judgment on its own motion.

Deutsche Bank Trust Co. v. Tri-Links Investment Trust · filed 2007-05-15

CPLR 3212 does not authorize a court to grant summary judgment on its own motion, and CPLR 3124, the provision under which Tri-Links was moving, does not provide for converting a discovery motion to one for summary judgment (cf. CPLR 3211 [c] [on a motion to dismiss, “the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (emphasis added)]).

Section 3212(b) permits a court to consider a hearing transcript on summary judgment when it is part of the record, both sides relied on it, and neither side is prejudiced.

In re the Estate of Malone · filed 2007-12-06(b)

Pursuant to CPLR 3212 (b), a motion for summary judgment shall be granted if, based on all the “papers and proof submitted,” there exists no triable issue of fact. ... Nevertheless, in the broader context of the will contest, the transcript of the SCPA 1404 hearing is part of the record before the court. ... Under these circumstances, the parties charted their own course and, as no party has been prejudiced, it was not error for Surrogate’s Court to have considered this testimony.

Section 3212(b) requires a summary judgment movant to show that no triable issue of fact exists; the motion is denied if the movant fails to make that initial showing.

Bovt v. Subaru Auto Leasing, Ltd. · filed 2008-04-01(b)

The defendants Triboro Services, Inc., the owner of the vehicle involved in the subject accident, and Clement Figuera, the driver of the vehicle, failed to sustain their initial burden of demonstrating the absence of a triable issue of fact as to whether Figuera exercised due care to avoid the accident under the circumstances that existed at the time it occurred (see CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Paulin v Needham, 28 AD3d 531, 532 [2006]).

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law; the opposing party must then raise a question of fact requiring a trial.

Lynch v. Liberty Mutual Fire Insurance · filed 2009-01-27(b)

To succeed on a motion for summary judgment, the movant is required to establish its entitlement to judgment as a matter of law by demonstrating that there are no questions of fact, shifting the burden to the nonmovant to raise a question of fact requiring a trial (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324, 326 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]).

Under CPLR 3212(b), once a defendant establishes entitlement to summary judgment, the plaintiff must raise a triable issue of fact to defeat the motion.

Ann JJ. v. Schenectady Ass'n for Retarded Citizens · filed 2009-02-05(b)

Thus, Supreme Court properly determined that plaintiff failed to raise a triable issue of fact sufficient to defeat defendants’ motion for summary judgment.

Section 3212 requires a summary judgment movant to show entitlement to judgment as a matter of law and the absence of material factual issues; the opposing party must then show a genuine factual dispute.

360 Motor Parkway, LLC v. Mortgage Zone, Inc. · filed 2009-07-29

It is well settled that in order to obtain a summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact.

On a CPLR 3212 motion, a court considers submitted evidence when assessing the adequacy of pleadings, and triable factual issues preclude summary judgment.

Old Williamsburg Candle Corp. v. Seneca Insurance · filed 2009-10-06

However, Seneca moved, and the plaintiff cross-moved, for summary judgment pursuant to CPLR 3212. In conjunction with those motions, the parties submitted enough evidentiary material, including affidavits, deposition transcripts, and numerous documents, to support the allegations of misrepresentation and fraud. In assessing the adequacy of the pleadings, the Supreme Court should have considered that evidence (see Big Apple Car v City of New York, 204 AD2d 109 [1994]).

On a summary judgment motion, a court may consider a supported unpleaded claim raised by the plaintiff, but may not raise a new claim on the plaintiff’s behalf.

Lombardo v. Mastec North America, Inc. · filed 2009-12-15

Initially, the Supreme Court erred in, sua sponte, raising and considering a claim of vicarious liability against QNCC. ... Instead, the Supreme Court, sua sponte, raised this new theory, and did so more than seven years after the action was commenced.

Factual findings under CPLR 3212(g) give an aggrieved party standing to appeal, but are improper when issues of fact remain.

Alfaro v. Vardaris Tech, Inc. · filed 2010-01-07(g)

These factual findings, made pursuant to CPLR 3212 (g), aggrieved defendants and thus gave them standing to appeal (cf. Buller v Giorno, 40 AD3d 316 [2007]). The court erred ... in making these factual findings because the record evidence reveals that issues of fact remain with respect to each of them.

On a summary judgment motion, the movant must first present admissible evidence warranting judgment; the opponent must then show a factual issue requiring trial with admissible evidence.

People v. Pharmacia Corp. · filed 2010-02-03

The party moving for summary judgment has the initial burden of coming forward with admissible evidence to support the motion, so as to warrant the court directing judgment in movant’s favor; the burden then shifts to the opposing party to demonstrate, by admissible evidence, the existence of any factual issue requiring a trial (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Section 3212(b) does not permit a court to search the record and grant summary judgment on a claim or defense unrelated to the motion.

Horst v. Brown · filed 2010-04-06(b)

While “courts generally allow pro se litigants some leeway in the presentation of their case” (Stoves & Stones v Rubens, 237 AD2d 280 [1997]), in this particular case it was error to treat defendant’s opposition to plaintiffs motion for summary judgment on damages as either a motion to amend defendant’s answer, or a cross motion for summary judgment based on the statute of limitations.

Section 3212(f) permits a court to hold a summary judgment motion in abeyance when facts essential to opposing it may exist but cannot yet be stated.

Murray v. ANB Corp. · filed 2010-06-10(f)

A court may hold a summary judgment motion in abeyance pending further discovery when “facts essential to justify opposition [of the motion] may exist but cannot then be stated” (CPLR 3212 [f]; see Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163-164 [1980]).

Once a movant establishes prima facie entitlement to summary judgment, the opposing party must show a material factual issue requiring trial or provide an acceptable excuse for failing to do so.

Maldonado v. City of New York · filed 2010-08-23(b)

The defendant has established its prima facie entitlement to summary judgment by presenting evidence, in the form of the plaintiffs testimony, that the condition causing the plaintiffs injury was open and obvious and inherent to the property and, thus, nonactionable as a matter of law. ... In light of the foregoing, the plaintiff has failed to satisfy her burden of showing the existence of material issues of fact that would warrant a trial. ... Accordingly, the City’s motion for summary judgment is granted and the action is dismissed.

A defendant precluded from offering its own evidence on liability may still seek summary judgment by challenging the sufficiency of the plaintiff’s evidence.

Mendoza v. Highpoint Associates, IX, LLC · filed 2011-03-08(b)

Contrary to Supreme Court’s determination, the fact that defendant was precluded from presenting evidence at trial on liability did not affect its right to move for summary judgment. ... In fact, CPLR 3212 (b) implicitly draws an analogy between the motion for summary judgment and the motion for a directed verdict made at trial.

Section 3212(b) places the burden on the opposing party once the movant establishes entitlement to summary judgment; absent a cross motion, the movant need not reply to avoid admitting facts raised in opposition.

TOWN OF ANGELICA v. SMITH, JOEL S. · filed 2011-11-18(b)

The failure of a movant to submit a reply to opposition papers should not be deemed an admission because, at that point, the movant no longer has any burden. On a summary judgment motion, the movant has the initial burden of establishing its entitlement to judgment as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Once that initial burden has been met, the opposing party has the burden of establishing “facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see generally Zuckerman, 49 NY2d at 562).

Section 3212(b) permits affidavits, pleadings, depositions, and written admissions as proof on a summary judgment motion.

People v. Greenberg · filed 2012-05-08(b)

CPLR 3212 (b), which governs the type of proof admissible in support of a motion for summary judgment, allows for consideration of affidavits, the pleadings and other available proof, such as depositions and written admissions (Andre v Pomeroy, 35 NY2d 361 [1974]).

On a summary judgment motion, the moving party must establish its entitlement to judgment; the opposing party must then show a triable issue of fact.

Marston v. State · filed 2012-11-07

The court finds that defendant has met its initial burden on the motion by offering proof that decedent was engaged in navigating a portion of the canal system at the time of the accident and, additionally, that under the circumstances and location of decedent’s accident, Canal Law § 120 provides the defendant absolute immunity from a claim for injuries and damages resulting from navigation of the canal system. The burden thus shifts to claimant to show the existence of a triable issue of fact.

Under CPLR 3212(b), once a summary judgment movant makes a prima facie showing, the opposing party must demonstrate a triable issue of fact.

Vincent v. Landi · filed 2012-12-27(b)

Thus, the burden shifted to plaintiffs to demonstrate the existence of a triable issue of fact (see CPLR 3212 [b]; Cole v Roberts-Bonville, 99 AD3d 1145, 1147 [2012]).

Section 3212(g) permits a court to establish an undisputed fact for all purposes in a proceeding even when a defense remains for trial.

72A Realty Associates, L.P. v. Mercado · filed 2014-12-17(g)

In this posture, and since tenant did not otherwise controvert the existence or amount of his rent indebtedness, we deem tenant’s rent liability established for all purposes in the proceeding (see CPLR 3212 [g]).

CPLR 3212 requires the moving party to show entitlement to judgment as a matter of law; the opposing party must then show a factual issue requiring trial.

State v. Raymundo V. · filed 2015-02-24

Therefore, the court finds that the respondent made a prima facie showing of entitlement to judgment as a matter of law and that the burden shifted to petitioner to submit proof to demonstrate a question of fact. The petitioner failed to meet this burden in that the State relied solely on its order to show cause and petition and the accompanying article 10 evaluation report to refute respondent’s proof.

On a CPLR 3212 motion challenging a pleading defect, the court must consider evidentiary submissions and cannot confine its review to the pleadings.

Lindquist v. County of Schoharie · filed 2015-03-05

Here, a different analysis is required, as defendant moved for summary judgment pursuant to CPLR 3212 on the ground that plaintiffs' complaint failed to state a cause of action for negligent highway design. This application by its nature is not addressed solely to the pleadings, and to treat it as such is in error.

Section 3212 requires a summary judgment movant to establish prima facie entitlement to judgment before the opposing party must produce evidence of a factual issue.

Saddle Brook Surgicenter, LLC v. All State Insurance · filed 2015-04-07

The proponent of a motion for summary judgment bears the initial burden of coming forward with evidence showing prima facie entitlement to judgment as a matter of law, and, unless that burden is met, the opponent need not come forward with any evidence at all.

Section 3212(b) allows affidavits from people with knowledge of the facts as admissible evidence on a summary judgment motion.

Viviane Etienne Medical Care v. Country-Wide Ins. · filed 2015-06-10(b)

Admissible evidence may include "affidavits by persons having knowledge of the facts [and] reciting the material facts" (GTF Marketing v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557, 562).

CPLR 3212(f) does not justify denying summary judgment based only on speculation that discovery may uncover evidence sufficient to defeat the motion.

Staskiv v. Shlayan · filed 2015-10-28(f)

“The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion”

On a summary judgment motion, hearsay inadmissible at trial may be considered if additional competent evidence supports it or there is an excuse for not presenting admissible proof.

Zupan v. Price Chopper Operating Co., Inc. · filed 2015-10-29

With that said, however, we acknowledge that, although "hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form" (Saint James' Episcopal Church v F.O.C.U.S. Found., 47 AD3d 1058, 1059 [2008]; see Towne v Kinglsey, 121 AD3d 1381, 1382-1383 [2014]). ... Agreeing with Supreme Court that these statements cannot be admitted pursuant to any exception to the hearsay rule, we also agree that such statements are sufficiently corroborated so as to permit their consideration in the context of the summary judgment motion.

Section 3212 permits summary judgment when the movant supports a defense with evidence and the opponent fails to meaningfully rebut it.

Raymond Cecora, P.T., P.C. v. Mercury Cas. Co. · filed 2016-06-06

In support of the branch of its motion seeking summary judgment, defendant submitted an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services at issue. In opposition to defendant's motion, plaintiff submitted an affidavit which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME report ( see Pan Chiropractic, P.C. v Mercury Ins. Co. , 24 Misc 3d 136 [A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

On a summary judgment motion, deposition testimony is an acceptable form of proof; an affidavit is not required.

MBIA Ins. Corp. v. JPMorgan Sec. LLC · filed 2016-06-06

There is no requirement that proof be submitted in the form of an affidavit, as opposed to other acceptable forms, such as deposition testimony ( Muniz v Bacchus , 282 AD2d 387 [1st Dept 2001]).

Once the moving party establishes entitlement to summary judgment, the opposing party must present admissible evidence of facts requiring a trial.

Bank of New York Mellon v. Davis · filed 2017-03-31(b)

Once such proof has been proffered, the burden shifts to the opposing party who, to defeat the motion, must offer evidence in admissible form, and must set forth facts sufficient to require a trial of any issue of fact (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Under CPLR 3212(b), once a summary judgment movant satisfies its initial burden, the opposing party must raise a triable issue of fact.

Maritza P. v. Devereux Foundation · filed 2017-04-18(b)

Defendants having satisfied their initial burden on summary judgment, the burden shifted to plaintiffs to raise a triable issue of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Section 3212 permits summary judgment on causation when the material facts are undisputed and the defendant is entitled to judgment as a matter of law.

Fuchs v. City of New York · filed 2017-09-11

However, where the material facts are not in dispute it is within the court’s province to determine as a matter of law whether the defendant is entitled to summary judgment based on causation.

Section 3212(b) requires a summary judgment movant to establish its initial entitlement to judgment with admissible proof; if it fails, the motion is denied regardless of the opposing papers.

O'Donnell v. A.R. Fuels, Inc. · filed 2017-11-01(b)

Since the owner failed to sustain its initial burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law with respect to its cross claim for contractual indemnification (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 563 [1980]), the court properly denied that branch of its motion which was for summary judgment on its cross claim for contractual indemnification and that branch of its separate motion which was for,declaratory relief, regardless of the sufficiency of the tenant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Under CPLR 3212(b), unsworn medical records are inadmissible on a summary judgment motion.

Sanchez v. Oxcin · filed 2018-01-18(b)

Plaintiff also submitted certified records of all treatment provided by the surgeon who performed the cervical spine surgery and, although not admissible, because unsworn (CPLR 3212[b]), these records are consistent with the sworn expert report ( cf. Garcia v Feigelson , 130 AD3d 498 [1st Dept 2015] [unaffirmed MRI reports were of no avail to plaintiff even if admissible because they did not address causation or compare results of earlier MRIs]).

CPLR 3212(b) requires admissible evidence to support a claim against a summary judgment motion; hearsay and speculation do not establish breach or causation of damages.

Budow Sales Corp. v. G. Holdings Corp. · filed 2019-04-30(b)

Additionally, plaintiffs proffered no admissible evidence of Dahan's breach or causation of damages, but offered only hearsay and speculation ( see CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557, 562 [1980]).

Section 3212(b) requires a defendant seeking summary judgment to first submit admissible evidence showing that the claim has no merit.

Anghel v. Ruskin Moscou Faltischek, P.C. · filed 2021-01-27(b)

"A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" ( GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967; see CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557, 562). Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the remaining causes of action.

A motion made after the defendant answers is treated as a CPLR 3212 summary judgment motion when it relies on dismissal grounds asserted in the answer.

State of New York v. Konikov · filed 2020-04-09

Because defendant filed an answer, his subsequent motion "was a CPLR 3212 motion for summary judgment that was based in part upon the CPLR 3211 (a) grounds asserted in the answer" ( DelVecchio v Collins , 178 AD3d 1336, 1336 n [2019] [internal quotation marks, brackets and citations omitted]).

After a defendant answers, a motion based partly on CPLR 3211(a) grounds raised in the answer is a CPLR 3212 summary judgment motion.

DelVecchio v. Collins · filed 2019-12-26

"Because defendant filed an answer, the subsequent motion 'was a CPLR 3212 motion for summary judgment that was based [in part] upon the CPLR 3211 (a) grounds asserted in [the] answer'" ( Flowers v State of New York , 175 AD3d 1724, 1725 n 2 [2019], quoting Jones v State of New York , 171 AD3d 1362, 1362 n 1 [2019], appeal dismissed 33 NY3d 1056 [2019]).

A motion made after an answer on grounds asserted in that answer is treated as a CPLR 3212 summary judgment motion.

Flowers v. State of New York · filed 2019-09-26

Because defendant filed an answer, the subsequent motion "was a CPLR 3212 motion for summary judgment that was based upon the CPLR 3211 (a) grounds asserted in [the] answer" ( Jones v State of New York , 171 AD3d 1362, 1363 n 1 [2019], appeal dismissed 33 NY3d 1056 [2019]).

A court may decide a CPLR 3212 summary judgment motion even when a CPLR 3211 motion might have been more appropriate.

Rubenstein v. Otterbourg, Steindler, Houston & Rosen · filed 1973-06-25

Mr. Turkisher and the association are now moving pursuant to CPLR 3212 for summary judgment on the ground that the cause of action has no merit. Perhaps it would have been more appropriate to move under CPLR 3211, but the difference is of no moment.

A CPLR 3212 summary judgment motion is academic when the complaint is dismissed as legally insufficient.

New York Fruit Auction Corp. v. City of New York · filed 1981-06-11

The second branch of the motion under CPLR 3212 must be denied as academic in the absence of a legally sufficient complaint.

A CPLR 3212 summary judgment motion requires consideration of triable factual issues and should not be treated as a motion addressed only to the face of the pleading.

Hartford Accident & Indemnity Co. v. Michigan Mutual Insurance · filed 1983-05-03

We also disagree with Special Term’s treatment of the cross motion by Michigan Mutual for summary judgment (CPLR 3212) as one to dismiss, addressed to the face of the pleading (CPLR 3211).

Section 3212(a) permits consideration of a summary judgment motion made before joinder of issue when the defendant later answers and its opposing affidavits allow all triable factual issues to be raised.

Wojna v. Merchants Insurance · filed 1983-06-15(a)

Although this motion was made prior to joinder of issue on the declaratory judgment action, such prematurity (CPLR 3212, subd [a]) does not preclude consideration of the motion since defendant has submitted its answer which, along with its affidavits in opposition to the instant motion, allowed all triable issues of fact to be raised.

A motion labeled as one to dismiss under CPLR 3211 is treated as a CPLR 3212 summary judgment motion when made after joinder of issue.

Impastato v. De Girolamo · filed 1983-06-27

Although Dr. Citrin’s cross motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (subd [a]), it was made after joinder of issue and, therefore, was actually a motion for summary judgment pursuant to CPLR 3212 (see Connell v Hayden, 83 AD2d 30, 32).

A motion to dismiss for lack of personal jurisdiction brought more than one year after the answer should be made under CPLR 3212, with notice that it will be treated as a summary judgment motion.

Boswell v. Jiminy Peak, Inc. · filed 1983-05-31

Since it was brought more than one year after service of the answer it should have been made under CPLR 3212 (see Connell v Hayden, 83 AD2d 30, 32) and Special Term should have given notice to the parties that the motion would be treated as one for summary judgment (see Rich v Lefkovits, 56 NY2d 276).

A motion to dismiss on a ground already raised in the answer is treated as a summary judgment motion under CPLR 3212.

Aleci v. Virgie E. Tinsley's Enterprises, Inc. · filed 1984-06-04

Its subsequent motion to dismiss the complaint as time barred was therefore “a motion for summary judgment under CPLR 3212 upon a ground stated in CPLR 3211” (Pace v Perk, 81 AD2d 444,456).

CPLR 3212 summary judgment procedure does not apply to a motion to dismiss for failure to state a cause of action that the court has not treated as a summary judgment motion.

Paulsen v. Paulsen · filed 1989-03-27

Contrary to the defendants’ contention, the motion at issue was to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) and not for summary judgment pursuant to CPLR 3212.

Section 3212(b) applies to motions for summary judgment in lieu of a complaint under CPLR 3213, allowing the court to consider an opposing party’s request for summary judgment when no procedural objection is raised.

Lipsky v. Ajax Electric Motor Corp. · filed 1996-03-08(b)

Because CPLR 3212 (b) applies to CPLR 3213 motions (see, Reschke v Eadi, 84 AD2d 904) and because plaintiffs did not raise a procedural objection to defendant’s request for summary judgment, we follow the procedural path charted by the parties and consider defendant’s request (see, Reilly v Insurance Co., 32 AD2d 918; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:ll, at 509).

CPLR 3212 governs a defendant's motion for summary judgment on grounds asserted in its answer when the defendant has already answered the complaint.

Sager v. County of Sullivan · filed 2016-12-01

Although defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), defendant had filed an answer and, thus, its motion should have been denominated as one for summary judgment under CPLR 3212 dismissing the complaint on grounds asserted in its answer (see Matter of Andrews v State of New York, 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912 [2016]).

A postanswer motion based on CPLR 3211 grounds asserted in the answer is treated as a CPLR 3212 motion for summary judgment.

Oppenheimer v. State of New York · filed 2017-07-20

Although defendant framed its motion as a motion to dismiss under CPLR 3211 (a) (2), (7) and (8), as it was made postanswer, “it was a CPLR 3212 motion for summary judgment that was based upon the CPLR 3211 (a) grounds asserted in [defendant’s] answer” (Matter of Andrews v State of New York, 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912 [2016]).

CPLR 3212 summary judgment motions ordinarily apply to actions, not special proceedings.

Marine Midland Bank-Eastern National Ass'n v. Conerty Pontiac-Buick, Inc. · filed 1974-02-11

Since Special Term has heretofore correctly determined that the within controversy is not an action but, rather, a proceeding to determine adverse claims pursuant to CPLR 5239, plaintiff’s motion for summary judgment pursuant to CPLR 3212 would not, normally, lie since summary motion relief is only available in actions.

Section 3212 summary judgment is unavailable in an article 10 child protective proceeding, which requires a fact-finding hearing.

In re Henson · filed 1974-02-27

However, this court is constrained to find that summary judgment is not available in a child protective proceeding under article 10 of the Family Court Act.

Section 3212 summary judgment motions appear inappropriate in special proceedings governed by CPLR article 4.

Oelbermann Associates Ltd. Partnership v. Borov · filed 1988-11-15

It appears, therefore, that summary judgment motions pursuant to CPLR 3212 are not appropriate.

CPLR 3212 (g) findings remain in place on appeal when the appellant fails to give a sufficient basis to strike them.

MB Advanced Equip., Inc. v. New York Cent. Mut. Fire Ins. Co. · filed 2016-06-03(g)

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court's CPLR 3212 (g) 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(c) gives the court discretion to decline a framed-issue trial on causation.

Farkas v. Saary · filed 1993-03-02(c)

Nor did Supreme Court abuse its discretion in declining to direct a framed-issue trial on the question of causation (CPLR 3212 [c]).

Section 3212(g) permits a court to hold a summary judgment motion in abeyance pending a hearing on specified factual issues.

Trio Realty Co. v. Cofield · filed 1991-06-10(g)

Accordingly, the motion for summary ... judgment on the counterclaim and a disposition on the underlying proceeding are held in abeyance pending a hearing on such issues as limited by the court.

Section 3212(g) permits a court to deem facts established for trial when the opposing party fails to rebut them with evidence from someone with personal knowledge.

O'Neil v. Peekskill Faculty Ass'n · filed 1986-10-14(g)

With regard to the plaintiff’s cross motion to deem certain facts established, the defendants submitted no affidavits by persons with personal knowledge of the facts either in support of their motion for summary judgment or in opposition to the plaintiff’s cross motion pursuant to CPLR 3212 (g) to limit the issues of fact for trial (see, Vermette v Kenworth Truck Co., 68 NY2d 714; Zuckerman v City of New York, 49 NY2d 557, 562), and challenge only one of the four factual allegations deemed admitted by Special Term. ... Special Term thus did not err in deeming all four factual allegations established for all purposes in this action.

Section 3212(g) permits a court to limit the issues for trial when it denies summary judgment.

Fordham Operating Corp. v. County of Westchester · filed 1975-03-19(g)

In view of the foregoing, the motion and cross motion for summary judgment are denied. However, the issues to be determined at the trial of this action shall be limited in accordance with the foregoing (CPLR 3212, subd [g]).

Section 3212(g) permits the court to limit the issues left for trial when a summary judgment motion establishes part of a claim.

Hedge v. Sachs · filed 1975-12-22(g)

Thus, as between plaintiffs William and Irene Hedge and defendants, the sole liability issue that ought to be tried is whether William Hedge was contributorily negligent (CPLR 3212, subd [g]).

Section 3212(g) permits a court to limit the issues for trial after denying summary judgment.

Crossman Cadillac, Inc. v. Board of Assessors · filed 1976-10-25(g)

The trial of this proceeding should be limited to that issue (see CPLR 3212, subd [g]).

CPLR 3212(g) permits a court that declines summary judgment to identify the issues for a later trial.

Metro Burak, Inc. v. Rosenthal & Rosenthal, Inc. · filed 1976-03-08(g)

Order modified by deleting therefrom the sixth and seventh decretal paragraphs and substituting therefor the following: "ordered, that pursuant to CPLR 3212 (subd [g]), at any subsequent trial, the only issues which should be litigated are whether the plaintiff, by its attorney or otherwise, (1) was aware that the assignment for the benefit of creditors had been executed and delivered by the assignor to the interpleaded defendant as assignee and that the assignee had thereupon accepted the responsibilities thereof despite the fact that it failed to execute the assignment at that time and to record it immediately thereafter, and (2) was elected a member of the creditors’ committee at the meeting held on September 20, 1973 and agreed to litigate and distribute the assignors’ assets under the subject assignment for the benefit of all of the creditors, and it is further ordered, that if, upon a trial of the facts, the answer to either of such questions is found to be in the affirmative, then the plaintiffs may be estopped from asserting the priority of the execution levy issued under its judgment; and if the answer to both questions is in the negative, then such priority should be sustained and judgment granted to the plaintiff.”

Section 3212(g) permits a court to limit factual issues for trial, but the court may leave an issue for proof at trial when the relevant information is exclusively within the requesting party’s knowledge.

Shanks v. Mills · filed 1977-06-03(g)

Further, we find no error in the court’s refusal to limit the factual issues for trial, as requested by defendant K Mart, by determining that the shirts generally sold by K Mart at the time of plaintiff’s purchase were supplied exclusively by defendant Oneita (see CPLR 3212, subd [g]). That information is exclusively within the knowledge of K Mart and should be a matter of proof at trial.

When summary judgment is denied, section 3212(g) directs the court, if practicable, to identify facts that are undisputed or incontrovertible.

Di Giacomo v. City of New York · filed 1977-07-14(g)

In the spirit of this section and although subscribing to the plaint of a heavy and busy schedule in the resolution of appellate matters, the nature of the issues raised in this appeal requires that the litigants and the Supreme Court be afforded whatever guidance and explication can be gleaned from the record. I have sought to do this by (1) clarifying the issues and (2) where appropriate, resolving the historical and factual context in which those issues are presented.

Section 3212(c) permits a court to direct a trial of a factual issue raised by summary judgment motions.

Kowalczyk v. Flintkote Co. · filed 1978-05-26(c)

We reverse the summary judgment granted at Special Term which ordered defendant, Flintkote, to pay plaintiff, Kowalczyk, a monthly retirement benefit and, in this litigation over the meaning of the language contained in a collective bargaining agreement, direct that a trial of such issue of fact raised by the motions for summary judgment be held (CPLR 3212, subd [c]).

CPLR 3212(g) allows a court to deem an undisputed fact established for all purposes in the action when it denies full summary judgment.

Schwartz v. Long Beach City School District · filed 1978-10-30(g)

However, since the defendants’ version of the facts clearly shows that plaintiff Steven Schwartz, the driver of the automobile, could not possibly have been guilty of contributory negligence, the lack of contributory negligence "shall be deemed established for all purposes in the action” (see CPLR 3212, subd [g]) and the trial shall be limited, in its liability aspect, to the issue of the negligence of the defendants.

Section 3212 precludes summary judgment when a factual issue about equitable estoppel must be decided by a jury.

Renda v. Frazer · filed 1979-08-13

At the very least, as the cases discussed have held, it is a jury question precluding the granting of summary judgment and the court so holds.

Section 3212(g) does not permit a court to deem negligence established when material facts bearing on negligence remain triable.

Key Appliance, Inc. v. National Bank of North America · filed 1980-05-29(g)

We have concluded that there is a triable issue as to whether the bank breached its contract and was negligent in the light of the bank resolution and the general practice of the bank and the alleged conversations among its officers. ... Order, Supreme Court, New York County, entered May 15, 1979, modified, on the law, to deny the motion to strike the second and third affirmative defenses and to vacate the third decretal paragraph and its subdivisions which specified and deemed established for all purposes in this action certain facts and conclusions, and otherwise affirmed, without costs and without disbursements.

Section 3212(g) permits the court to limit a trial to the factual issues that remain after it denies summary judgment.

Mesivta of Forest Hills Institute, Inc. v. City of New York · filed 1980-12-22(g)

We find that as to only this issue there is a question of fact raised in the papers. Therefore, summary judgment must be denied. However, the trial of this action should be limited accordingly (see CPLR 3212, subd [g]).

Section 3212 permits an immediate trial of factual issues raised on summary judgment only when the statutory procedure allows it.

Macklowe v. Browning School · filed 1981-03-17

Special Term may not grant a trial preference with respect to factual issues raised on a motion for summary judgment other than is procedurally permissible by statute.

Section 3212(c) permits an immediate trial of remaining damages issues after summary judgment on liability.

German Educational Television Network, Ltd. v. Bankers Trust Co. · filed 1985-03-26(c)

Accordingly, the matter is remitted for immediate trial on all issues pertaining to damages pursuant to CPLR 3212 (c).

Section 3212(g) does not permit a court to bind the parties at trial on an issue that remains factually disputed.

Everlast World's Boxing Headquarters Corp. v. Lincoln Insurance · filed 1985-05-07(g)

Accordingly, we reinstate the complaint as against AFCO and vacate the declaration made under CPLR 3212 (g), estopping the parties from claiming at trial that Lincoln was entitled to cancel the policy for nonpayment of premium.

After a trial under CPLR 3212(c), the court may grant summary judgment when the evidence permits no rational finding for the opposing party.

County of Nassau v. H. Sand & Co. · filed 1988-11-28(c)

In accordance with a prior decision and order of this court, a trial was conducted pursuant to CPLR 3212 (c) to determine if actual physical work under the contract was completed prior to December 4, 1973 (see, County of Nassau v Sand & Co., 114 AD2d 483). ... Accordingly, the court did not err in granting the defendant’s motion for summary judgment dismissing the complaint as barred by the six-year Statute of Limitations.

Section 3212(c) permits a court to order a trial to resolve factual issues raised on a summary judgment motion.

Rescildo v. Macy's · filed 1989-11-30(c)

Accordingly, the matter is remanded for a trial pursuant to CPLR 3212 (c).

CPLR 3212(g) gives the court discretion to deny a motion to limit the factual issues for trial.

Norstar Bank of Upstate New York v. Bennett Funding Group · filed 1990-11-16(g)

Supreme Court did not abuse its discretion in denying defendant’s motion for an order limiting issues of fact for trial (see, CPLR 3212 [g]; Newell Co. v Rice, 158 AD2d 993).

Summary judgment must be denied when issues of fact require a trial.

Shubert v. Bennett Manufacturing Co. · filed 1994-02-03

Whether plaintiff was properly instructed as to her obligation to inspect the cargo to insure that it was secure, and whether such training would have rendered the conceded failure by Bennett’s employees "apparent”, are issues of fact requiring a trial.

Section 3212(g) permits a court to establish an issue for trial even when the movant is not entitled to summary judgment on liability.

Stanski v. Ezersky · filed 1994-12-27(g)

Accordingly, we limit the issues for trial to the extent of finding that the attorney defendants were negligent in failing to properly commence plaintiffs’ medical malpractice action (CPLR 3212 [g]). Such a finding, however, is not enough to entitle plaintiffs to summary judgment on the issue of liability.

Section 3212 permits summary judgment when the opposing party fails to show a factual issue requiring trial.

Kripke v. Benedictine Hospital · filed 1996-03-01

In conclusion, this court finds that the plaintiff has failed to demonstrate the existence of factual issues requiring a trial of this matter. Accordingly, the defendants’ motion for summary judgment is granted in its entirety and the complaint dismissed.

Section 3212(g) allows a court to narrow a hearing to specific unresolved issues after a summary judgment motion.

Hongkong & Shanghai Banking Corp. v. 335 Oser Avenue Associates · filed 1996-01-29(g)

Moreover, the Supreme Court properly exercised its discretion by narrowing the scope of the hearing to whether the principle of estoppel or waiver precluded the plaintiff from seeking a deficiency judgment and enforcement of the personal guarantees in this case (see, CPLR 3212 [g]).

Section 3212(c) permits a court to decline a separate hearing or trial of issues when it would require hearing the same evidence twice.

Locke Associates, Inc. v. Foundation for the Support of the United Nations · filed 1997-01-08(c)

Although the issues of capacity and standing must be resolved as threshold issues before the trial court can decide the substantive claims contained in the complaint, they should not be tried separately, either in a hearing on this motion or at trial, because that would require the court to hear the same evidence twice.

Section 3212(g) permits a court to direct an expeditious trial of unresolved issues when factual disputes preclude summary judgment.

Owen Mumford Ltd. v. Ulster Scientific, Inc. · filed 1997-01-16(g)

Therefore, since the only issues defendant has raised relate to the amount of its indebtedness, we shall modify Supreme Court’s order to provide for the severance of plaintiff’s claims from defendant’s counterclaims and directing an expeditious trial thereof; plaintiff should not have to await the disposition of defendant’s counterclaims before it receives payment because those counterclaims do not involve the goods sold to defendant nor are they inextricably intertwined with the subject sales (see, Yoi-Lee Realty Corp. v 177th St. Realty Assocs., 208 AD2d 185, 189; see also, CPLR 3212 [g]).

CPLR 3212(c) permits an immediate trial of an issue when resolving it would expedite disposition of the controversy.

Poley Paving Corp. v. United Cerebral Palsy Association of Sullivan County · filed 1997-07-31(c)

We commence our review by finding that Supreme Court appropriately determined that an immediate trial on the issue of liability would result in the “expeditious disposition of the controversy” (CPLR 3212 [c]) since both the motion for summary judgment as well as the cross motion were based upon grounds enumerated in subdivision (a) or (b) of CPLR 3211 (see, CPLR 3212 [c]).