N.Y. C.P.L.R. § 3212

CPLR 3212(g) allows a court to establish undisputed facts for all purposes in an action while leaving disputed issues for trial.

Garcia v. Tri-County Ambulette Service, Inc. · filed 2001-04-03(g)

However, CPLR 3212 (g) permits the court to limit issues of fact for trial, by specifying which facts are not in dispute or are incontrovertible, and such facts shall be deemed established for all purposes in the action. Accordingly, we find that plaintiff was free from culpable conduct on the issue of liability.

Section 3212(g) permits a court to limit trial to issues that remain in dispute after summary judgment.

Bonner v. Hill · filed 2003-02-24(g)

Accordingly, the Supreme Court properly limited the issues for trial to the one injury the causation of which was in dispute (see CPLR 3212 [g]).

Section 3212(c) permits a court to try factual issues raised by competing summary judgment motions.

Neama v. Town of Babylon · filed 2005-05-31(c)

The Supreme Court properly conducted a nonjury trial, in effect, pursuant to CPLR 3212 (c) to determine issues of fact raised on the competing motions for summary judgment.

CPLR 3212(g) permits a court to limit the issues for trial, but unresolved factual issues can warrant denying that relief.

Reid v. State · filed 2009-04-02(g)

Finally, in light of the unresolved factual issues, we decline claimant’s request made pursuant to CPLR 3212 (g) for an order limiting the issues to be tried (see Van Ostberg v Crane, 273 AD2d 895, 896 [2000]).

CPLR 3212(g) permits a court to limit the issues for trial to facts that remain disputed after a summary judgment motion.

Quality Medical Healthcare v. NY Central Mutual Fire Insurance · filed 2010-12-03(g)

The CPLR authorizes a court, on a motion for summary judgment, to limit issues of fact for trial where it is able to “ascertain what facts are not in dispute or are incontrovertible” (CPLR 3212 [g]). ... Upon a review of the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g).

Section 3212(g) permits an issue resolved on a summary judgment motion to be treated as established at trial even when other factual issues remain.

Wasson v. Bond · filed 2011-01-27(g)

Supreme Court correctly construed the express language of the earlier decision and order, and relied on the doctrine of law of the case in concluding that the legal issue of the effect of the quitclaim deeds had already been resolved against defendant. Thus, the court properly limited defendant’s proof to the sole issue of adverse possession (see CPLR 3212 [g]; see also Siewert v Loudonville Elementary School, 210 AD2d 568, 569 [1994]).

Section 3212(g) does not automatically limit the issues for trial when a summary judgment motion is denied.

Healing Health Products, Inc. v. New York Central Mutual Fire Insurance · filed 2014-05-22(g)

As a preliminary matter, we note that, contrary to the apparent positions of both parties on appeal, the order appealed from does not limit the issues for trial pursuant to CPLR 3212 (g) (see generally A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 32 Misc 3d 63 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Section 3212(c) permits an immediate trial on damages when summary judgment resolves liability but the amount remains disputed.

Commissioners v. Garcia · filed 2015-08-06(c)

Accordingly, the matter will be set down for an immediate trial on the issue of damages before the court pursuant to CPLR 3212 (c) (Torres v American Bldg. Maintenance Co. of NY, 51 AD3d 905 [2d Dept 2008]).

CPLR 3212(g) permits a court that denies summary judgment to decline to deem facts established for trial.

S & R Med., P.C. v. GEICO Gen. Ins. Co. · filed 2016-06-23(g)

As we decline plaintiff's request to limit the issues for trial ( see CPLR 3212 [g]; Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. , 47 Misc 3d 130 [A], 2015 NY Slip Op 50383[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Pollenex Servs., Inc. v GEICO Gen. Ins. Co. , 44 Misc 3d 126 [A], 2014 NY Slip Op 50953[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), the order, insofar as appealed from, is affirmed.

Section 3212(g) permits a court to narrow the issues for trial when a summary judgment motion resolves only part of a claim.

Guerriero Ex Rel. Guerriero v. Sewanhaka Central High School District · filed 2017-05-03(g)

... with respect to damages on the derivative cause of action, the Supreme Court should have limited the issue for trial to the mother’s claim for medical expenses (see CPLR 3212 [g]; Bonner v Hill, 302 AD2d 544, 545 [2003]).

Section 3212(g) allows a court that denies summary judgment to identify established facts and limit the issues for trial.

525 EVM, Inc. v. GEICO Gen. Ins. Co. · filed 2017-09-08(g)

As we decline plaintiff's request to limit the issues for trial pursuant to CPLR 3212 (g) ( see S & R Med., P.C. v GEICO Gen. Ins. Co. , 52 Misc 3d 133 [A], 2016 NY Slip Op 51013[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order, insofar as appealed from, is affirmed.

Section 3212(g) permits a court to limit the issues for trial by identifying undisputed facts, but it does not shift the burden of proof on issues that remain triable.

Island Life Chiropractic, P.C. v. Travelers Ins. Co. · filed 2019-08-02(g)

CPLR 3212 (g) permits the limitation of issues for trial by the specification of facts that "are not in dispute or incontrovertible"; it does not permit the kind of burden shifting engaged in by the trial court as to issues which remain triable—here, by requiring plaintiff to commence the trial to establish that the outstanding verification had been mailed ( see id. ).

CPLR 3212(g) allows a court to establish facts for trial when a summary judgment motion does not resolve the entire case.

NL Quality Med., P.C. v. GEICO Ins. Co. · filed 2020-11-13(g)

To the extent plaintiff challenges the Civil Court's implicit CPLR 3212 (g) findings in favor of defendant with respect to the mailing of the EUO [*2]scheduling letters and denial of claim forms, the proof submitted by defendant was sufficient to demonstrate that the EUO scheduling letters and denial of claim forms had been timely mailed ( see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 [2008]).

CPLR 3212(g) does not support a finding that a claim was timely submitted when that issue remains disputed.

Advanced Recovery Equip. & Supplies, LLC v. Global Liberty Ins. Co. · filed 2020-11-13(g)

Accordingly, the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) finding in plaintiff's favor and the limitation of the trial to "the issue of fee schedule" are vacated.

Section 3212(g) allows findings that limit the issues for trial without requiring the case to proceed immediately to trial.

Westchester Radiology & Imaging, P.C. v. Global Liberty Ins. Co. of N.Y. · filed 2021-07-02(g)

Rather, it is a directive as to what will happen at trial, as the court, in effect, made CPLR 3212 (g) findings in plaintiff's favor limiting the trial to those defenses ( see Maxford, Inc. v Erie Ins. Co. of NY , 60 Misc 3d 135[A], 2018 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

CPLR 3212(g) findings in a party’s favor can support summary judgment when they are unchallenged and the opposing party raises no triable issue of fact.

Sufficient Chiropractic Care, P.C. v. Global Liberty Ins. Co. · filed 2021-10-08(g)

As plaintiff failed to raise a triable issue of fact in opposition to defendant's motion or challenge the implicit CPLR 3212 (g) findings in defendant's favor, defendant is entitled to summary judgment dismissing the complaint.

Section 3212(c) permits an immediate trial to determine amounts that remain unresolved after a summary judgment motion.

Norstar Bank v. Ortem Knab Corp. · filed 1993-07-16(c)

We reverse the judgment of foreclosure, therefore, and remit the matter to Supreme Court for an immediate trial (see, CPLR 3212 [c]) to determine the amounts due under the leases and to grant a judgment of foreclosure for the amount due under the mortgage less the amounts due under the leases.

Section 3212(c) permits an immediate hearing to resolve factual issues raised on a summary judgment motion.

Brown v. Sagamore Hotel · filed 1992-05-07(c)

It is also our view that Supreme Court should have conducted an immediate hearing with respect to these issues (see, CPLR 3212 [c]; Cannon v Putnam, 76 NY2d 644, 647; Rich v Lefkovits, 56 NY2d 276, 282; State of New York Higher Educ. Servs. Corp. v Starr, 158 AD2d 771), rather than await the trial for the determination thereof (see, Yannon v RCA Corp., 131 AD2d 843, 845; Darienzo v Selbern Shoe Co., 41 AD2d 736, 737).

Section 3212(c) permits an immediate trial to resolve factual issues that prevent a decision on summary judgment.

G.A. Contractors, Inc. v. Board of Education · filed 1991-10-21(c)

Inasmuch as these factual issues cannot be resolved on the record before us, we remit the matter to the Supreme Court for an immediate trial pursuant to CPLR 3212 (c) to determine the date upon which the plaintiffs damages became ascertainable and its claim accrued.

Section 3212(c) permits an immediate trial to determine a disputed lien amount after summary judgment resolves entitlement to the lien.

Clapper v. Kohls · filed 1991-01-03(c)

Inasmuch as what she assertedly expended for the maintenance, upkeep and improvement of the property is in dispute, an immediate trial should be had (CPLR 3212 [c]) to determine the proper amount of her lien.

Section 3212(c) permits an immediate trial of a disputed factual issue raised on a motion.

Maltaghati v. Long Island Rail Road · filed 1990-03-26(c)

Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for an immediate trial pursuant to CPLR 3212 (c) in accordance herewith.

Section 3212(c) permits an immediate trial to determine the amount of attorneys’ fees after summary judgment establishes entitlement to them.

487 Elmwood, Inc. v. Hassett · filed 1990-05-11(c)

They are also granted summary judgment for reasonable attorneys’ fees incurred in connection with the cross claim, the amount to be determined by an "immediate trial” (CPLR 3212 [c]).

Section 3212(c) permits an immediate trial of factual issues raised on a summary judgment motion; when a party requests a jury, disputed facts must be resolved by a jury.

Sosnowski v. Kolovas · filed 1987-02-17(c)

Hence, under these circumstances, and in light of counsel’s request for a jury determination, the plaintiffs were entitled to a jury resolution of the factual issues raised in the motion papers and at the hearing (see, CPLR 3212 [c]; cf., Cerrato v Thurcon Constr. Corp., 92 AD2d 89, appeal dismissed 59 NY2d 763; Barrella v Richmond Mem. Hosp., 88 AD2d 379, 381; Marshall, Bratter, Greene, Allison & Tucker v Mechner, 53 AD2d 537).

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

Home of Histadruth Ivrith, Inc. v. State of New York Facilities Development Corp. · filed 1986-02-06(c)

In view of the inordinate delay in resolving this dispute over possession of petitioner’s premises, now approaching four years since the expiration of the initial term of the lease, we exercise our discretion in ordering an immediate trial of respondents’ equitable defense (CPLR 3212 [c]), noting also that respondents, in asserting that defense, have effectively waived their right to a jury trial (see, Lewis v Levick, 99 AD2d 659).

Section 3212(c) permits an immediate trial to determine the amount of an attorney’s fee after the court decides to award one.

Arnot-Ogden Memorial Hospital v. Axelrod · filed 1986-04-17(c)

Therefore, the court finds that this is an appropriate case in which to grant an attorney’s fee and orders an immediate trial to determine the amount to be awarded (CPLR 3212 [c]).

Section 3212(c) permits an immediate trial of a factual issue needed to decide a summary judgment motion.

County of Nassau v. H. Sand & Co. · filed 1985-10-28(c)

It cannot be determined as a matter of law based upon this record that physical construction was completed prior to December 4, 1973. Therefore, the matter is remitted to the Supreme Court, Nassau County, for an immediate trial pursuant to CPLR 3212 (c) on that issue.

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

Stackrow v. New York Property Insurance Underwriter's Ass'n · filed 1985-12-19(c)

Accordingly, the matter should be remitted for trial pursuant to CPLR 3212 (c) of the issue of whether plaintiff was mentally incompetent at the time the cause of action arose so as to toll the Statute of Limitations.

Section 3212(c) permits an immediate trial of a disputed factual issue before disposition of a summary judgment motion.

Giovia v. Wald · filed 1984-07-30(c)

Accordingly, the matter is remitted to the Supreme Court, Kings County, for an immediate trial of this issue prior to disposition of the appellants’ motion (CPLR 3212, subd [c]).

CPLR 3212(c) allows the court to grant summary judgment on a cause of action while directing an immediate trial on damages before judgment is entered.

National Bank of North America v. Stadium Productions, Inc. · filed 1975-03-24(c)

Order modified, on the law, by adding thereto, immediately following the word "denied”, the following: "as to the second cause of action and granted as to the first cause of action, and the first cause is severed as to the individual defendants, provided, however, that entry of judgment on the first cause shall await an immediate trial as to damages thereon, pursuant to CPLR 3212 (subd [c]), and, more particularly, the proper attorneys’ fee allowance.”

Section 3212(c) permits an immediate trial of a factual issue raised on a summary judgment motion when doing so will expedite resolution of the case.

Sullivan v. Darling · filed 1975-04-24(c)

Alternatively, CPLR 3212 (subd [c]) (as well as CPLR 3211, subd [c]) empowers the Justice to whom the pretrial motion has been submitted to order an immediate trial of issues of fact "when appropriate for the expeditious disposition of the controversy”. ... Accordingly, defendant’s motion, insofar as it seeks an immediate trial of the issue of whether plaintiff has sustained a "significant disfigurement”, is granted, and the motion is transferred to the general calendar of the Supreme Court, County of Saratoga, for the trial of that issue (see 22 NYCRR 862.5).

Section 3212(c) permits an immediate hearing to assess damages when their amount remains disputed.

Hammond Kennedy & Co. v. Servinational, Inc. · filed 1975-09-11(c)

Since the amount of the commission is disputed and a question of fact with regard to the issue of damages is presented, defendant’s motion to resettle this court’s order entered July 24, 1975 is granted and the order resettled to provide for an immediate hearing to assess the amount or the extent of the damages resulting from the transaction of February 16, 1973, including, if appropriate, both the sale of defendant’s stock in the boating operations and the sale of the underlying real estate (CPLR 3212, subd [c]).

Section 3212(c) permits an immediate trial on damages after summary judgment is granted, with entry of judgment awaiting that trial.

Marine Midland Bank-Rochester v. Vaeth · filed 1976-11-04(c)

Provided, however, that entry of judgment in each action shall await an immediate consolidated trial as to damages thereon, pursuant to CPLR 3212 (subd [c]), more particularly for (a) the taking of proof and computation of interest in Action No. 1; (b) the calculation of interest in Action No. 2; and (c) the taking of proof and assessment of the value of attorneys’ fees in Action No. 2.

Section 3212(c) permits an immediate trial of a disputed factual issue that prevents summary judgment.

Dury v. Dunadee · filed 1976-05-21(c)

Rather, the plaintiffs complaint should be reinstated and this matter remitted for an immediate trial on the issue of intent (CPLR 3212, subd [c]).

Section 3212(c) permits an immediate trial of factual issues raised on a summary judgment motion, but does not allow the court to change the type of fact finder otherwise required.

Marshall, Bratter, Greene, Allison & Tucker v. Mechner · filed 1976-06-10(c)

The provision of CPLR 3212 (subd [c]) permitting the court to order an immediate trial of issues of fact raised by a motion for summary judgment "before a referee, before the court, or before the court and a jury, whichever may be proper” does not vest discretion in the court to require the trial of such issues of fact before any type of fact finder other than would be required were there no motion for summary judgment.

Section 3212(c) permits a court to set a disputed factual issue down for a hearing when that issue prevents summary judgment.

Am-Elm Realty, Inc. v. Stivers · filed 1977-01-21(c)

The matter should, accordingly, be set down for a hearing (CPLR 3212, subd [c]).

Section 3212(c) permits an immediate trial of a factual issue that prevents resolution of a summary judgment motion.

Almar Construction Corp. v. P. M. Hughes & Sons, Inc. · filed 1977-06-20(c)

As this is a factual dispute, it could not have been determined upon a motion for summary judgment. Therefore, an immediate trial of the issue should be conducted pursuant to CPLR 3212 (subd [c]).

Section 3212(c) permits the immediate determination of unresolved issues after a summary judgment ruling.

United States Fidelity & Guaranty Co. v. Stuyvesant Insurance · filed 1978-03-01(c)

The matter therefore should be remitted to Special Term for an immediate determination of such issues. (CPLR 3212, subd [c].)

Section 3212(c) permits a trial limited to damages when liability is established but the amount owed remains unresolved.

Miserendino, Krull & Foley v. Crump · filed 1978-07-13(c)

A trial is required solely on the issue of damages (CPLR 3212, subd [c]).

Section 3212 permits summary judgment when the opposing party submits no evidence raising a triable issue of fact, with an immediate trial to determine damages.

General Electric Credit Corp. v. Marcella's Appliances Sales & Services, Inc. · filed 1978-12-07(c)

We have examined the record and find no evidentiary material submitted on behalf of the defendant that is of such a nature as to defeat a motion for summary judgment. Accordingly, the relief plaintiff seeks should be granted (see CPLR 3212, subd [c]; Freedman v Chemical Constr. Corp., 43 NY2d 260, 264). Order modified, on the law, by granting summary judgment to plaintiff and directing an immediate trial on the issue of damages, and, as so modified, affirmed, without costs.

Section 3212(c) permits an immediate trial on damages after partial summary judgment, but the trial may be delayed to allow discovery on damages.

Ficor, Inc. v. National Kinney Corp. · filed 1979-01-30(c)

The "immediate trial” to which plaintiffs are entitled on the issue of damages (CPLR 3212, subd [c]) should be held in abeyance until defendants have had an opportunity to depose plaintiffs and purchasers on that issue (Blasi v Checker Fuel Oil Corp., 20 Mise 2d 359; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.14).

Section 3212(c) permits an immediate determination of an unresolved issue in a summary judgment proceeding.

In re Ackerman · filed 1978-12-15(c)

Accordingly the proceeding is remitted to Jefferson County Supreme Court, Special Term, for an immediate determination of this issue (CPLR 3212, subd [c]).

Section 3212(c) permits an immediate trial of a factual issue in a summary judgment proceeding.

Almar Construction Corp. v. P. M. Hughes & Sons, Inc. · filed 1979-06-04(c)

Order reversed, on the law, without costs or disbursements, and the action is remitted to Trial Term for an immediate trial, pursuant to CPLR 3212 (subd [c]), on the issue of whether Hughes "presented” a copy of its final requisition (which this court has already held constitutes a notice of claim [Almar Constr. Corp. v Hughes & Sons, 58 AD2d 615]) to the Board within the meaning of section 3813 of the Education Law.

Section 3212(c) permits an immediate trial of a damages issue that remains disputed on a summary judgment motion.

Grady v. Utica Mutual Insurance · filed 1979-08-06(c)

The papers raise an issue of fact as to the extent of the loss. Plaintiff claimed that it was total whereas the defendant contended in its papers submitted in opposition to the motion for summary judgment that the dwelling sustained only $33,600 damage. Accordingly, the order appealed from should be reversed and the matter remitted for an immediate trial of the issue of damages under CPLR 3212 (subd [c]).

Section 3212(c) permits a hearing to determine the value of an engagement ring if it cannot be returned after summary judgment awards its return.

Brodsky v. Brodsky · filed 1979-10-15(c)

In the event that the plaintiff is unable to return the engagement ring, ... a hearing will be necessary to establish its value (see CPLR 3212, subd [c]).

Section 3212(c) permits summary judgment while unresolved damages issues proceed to trial.

Chemical Bank v. Queen Wire & Nail, Inc. · filed 1980-05-09(c)

Plaintiff’s motion for summary judgment is granted and the matter is remitted for an immediate trial on the issue of damages only (CPLR 3212, subd [c]) including mitigation and attorneys’ fees.

Section 3212(c) permits a court to try factual issues raised by a motion to dismiss, but does not require a jury to decide an equitable estoppel issue.

Marable v. Robinson · filed 1979-12-13(c)

CPLR 3212 (subd [c]) provides, in part, for an immediate trial of issues of fact raised in a motion to dismiss under CPLR 3211 (subd [a]) or (subd [b]) "before a referee, before the court, or before the court and a jury, whichever may be proper.” ... This court is convinced, however, that the issues raised here are equitable in nature and that a jury trial on this motion would be improper and is not required under either section of the CPLR.

Section 3212 permits a court to order an immediate trial of a factual issue that cannot be resolved on summary judgment papers.

Gross v. Newburger, Loeb & Co. · filed 1980-02-08

But the resolution of these factual issues cannot be made upon papers submitted to the court. On the other hand, delaying resolution until the trial of this action would needlessly prejudice defendants, for if they are not equitably estopped from raising the Statute of Limitations defense, the second cause of action may be dismissed against them now. Fairness to all parties dictates, and the order to be entered shall provide, that there be an immediate trial, by the court, of the factual issue of whether defendants are equitably estopped from raising the defense of the Statute of Limitations with respect to the second cause of action. (See CPLR 3212, 2218.)

CPLR 3212(c) permits summary judgment on liability followed by an immediate trial on damages.

Kosic v. Marine Midland Bank · filed 1980-07-10(c)

Accordingly, summary judgment should be granted to plaintiff against defendant Marine and an immediate trial held pursuant to CPLR 3212 (subd [c]) of all issues relating to the extent of damages.

Section 3212(c) permits an immediate trial of damages when liability is resolved on summary judgment and damages remain disputed.

Syracuse Supply Co. v. Vogel · filed 1980-11-13(c)

the amount or extent of damages, the matter should be remitted to Supreme Court, Onondaga County, for an immediate trial of that issue of fact (CPLR 3212, subd [c]).

Section 3212(c) permits an immediate trial to resolve a factual issue before a summary judgment motion is decided.

Lifset v. Western Pile Co. · filed 1981-12-31(c)

We conclude that an immediate trial pursuant to CPLR 3212 (subd [c]), on the issue of the intent of the parties at the time the agreement in question was executed would have been appropriate for the expeditious disposition of the controversy under the circumstances.

Section 3212 requires trial of counterclaims that raise factual issues.

Standard Security Life Insurance v. Bedell · filed 1982-03-24

Defendants’ counterclaims raise numerous issues of fact which must be decided at a trial (CPLR 3212).

CPLR 3212(c) permits, but does not require, an immediate trial of an issue when resolving it would not expeditiously dispose of the controversy.

Mateo v. Rish · filed 1982-01-28(c)

Lastly, CPLR 3212 (subd [c]) is permissive, and since resolution of the single issue could not expeditiously dispose of this controversy, Special Term properly denied the motion for an immediate trial of the Statute of Limitations issue.

Section 3212 permits an immediate trial of factual issues raised by a motion to dismiss before trial on the merits.

Hoffman v. Brookdale Hospital Medical Center · filed 1983-02-07(c)

Order reversed, without costs or disbursements, and matter remitted to the Supreme Court, Kings County, for an immediate trial of the issues raised on the motion (see CPLR 3212, subd [e]).

Section 3212(c) permits a court deciding a summary judgment motion to order a hearing on a disputed factual issue.

Pacchiana v. Pacchiana · filed 1983-05-09(c)

Since the plaintiff’s amended verified complaint alleges that the agreement was not acknowledged (even though the copy in the record contains an acknowledgment), a fact question exists relative to acknowledgment, and we remit the matter for a hearing on that issue (see CPLR 3212, subd [c]).

Subdivision (c) permits an immediate trial on damages when summary judgment resolves liability but damages remain disputed.

Steciw v. Tondo · filed 1984-01-27(c)

The matter is remitted for an immediate trial on damages (see CPLR 3212, subd [c]).

Section 3212(c) permits a separate trial of factual issues raised by a summary judgment motion, but that discretion must be exercised before trial begins.

Brown v. Micheletti · filed 1983-10-31(c)

The discretion conferred by CPLR 2218, 3211 (subd [c]) and 3212 (subd [c]) to grant separate trials of issues of fact raised by pretrial motions is to be exercised prior to, and not during the course of the trial of the action, so that the resulting ruling, reduced to an order prior to trial of the action, is appealable.

Section 3212(c) permits a court considering summary judgment to refer an unresolved factual issue for immediate trial.

Miroff v. State Farm Fire & Casualty Co. · filed 1984-01-26(c)

While this court has decided what should be the applicable standards with respect to this motion for summary judgment, it also appears that it would be more appropriate that a record were developed as to the Miroffs’ intent concerning their separate residences and future marital relationship consistent herewith. Inasmuch as a determination of that issue will provide for the expeditious disposition of the matter the same is referred for immediate trial on said issue at a Trial Term, Part I, in Albany County pursuant to CPLR 3212 (subd [c]).

CPLR 3212(c) permits an immediate trial on damages when summary judgment establishes liability but damages remain disputed.

General Electric Co. v. Kessler · filed 1987-06-15(c)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff’s motion is granted to the extent that the plaintiff is awarded partial summary judgment on the issue of liability, and the matter is remitted to the Supreme Court, Nassau County, for an immediate trial pursuant to CPLR 3212 (c) on the issue of damages.

Section 3212(c) leaves an immediate trial on damages to the trial court’s discretion when damages is the only triable factual issue.

Ludlam v. Jones · filed 1987-06-15(c)

The decision as to whether to direct an immediate trial where the only triable factual issue concerned damages was within the sound discretion of the trial court (CPLR 3212 [c]). Where, as here, there were still pending discovery proceedings and a pending motion to consolidate this action with another action—which motion has since been granted—the court’s refusal to grant a trial preference was not an abuse of discretion.

CPLR 3212(c) permits an immediate trial of factual issues raised by a summary judgment motion based on the Statute of Limitations.

Yannon v. RCA Corp. · filed 1987-06-29(c)

Both parties argue, and we agree, that Justice Sangiorgio should have determined the issue himself rather than referring it to a jury. In ordering the first hearing, Justice Rubin was, in fact, acting pursuant to CPLR 3212 (c), which permits an immediate trial of issues of fact raised by a motion for summary judgment based on the Statute of Limitations.

Section 3212(c) authorizes an immediate trial when only damages remain after summary judgment on liability.

Figueroa v. Waldbaum's Inc. · filed 1994-01-08(c)

In keeping with the provisions of CPLR 3212 (c) authorizing an "immediate” trial where there remains only the issue of damages, this action shall be afforded a trial preference (see, CPLR 3403 [a] [2], [3]).

Section 3212(c) permits an immediate trial to determine the amount due when the record lacks proof of that amount.

Commonwealth Land Title Insurance v. Mattera · filed 1994-10-03(c)

Therefore, this matter is remitted to the Supreme Court for an immediate trial to determine the sum due (CPLR 3212 [c]).

Section 3212 (c) permits a hearing to resolve factual issues; resolving the sole substantive issue effectively converts the summary judgment proceeding into a plenary bench trial.

Argentina v. Otsego Mutual Fire Insurance · filed 1995-07-05(c)

However, the Supreme Court ultimately considered and determined the question after a testimonial hearing held pursuant to CPLR 3212 (c). While that statute was designed primarily to permit early resolution of preliminary or secondary factual issues, it was used in this case to resolve the only substantive issue in the case: whether there was a cognizable excuse for the insureds’ delay in providing the insurer with notice. Thus, as the dissenters at the Appellate Division observed, the proceeding before the Supreme Court was effectively converted from one involving summary judgment to one involving a plenary bench trial resulting in a judgment rendered after a full fact finding.

Section 3212(c) permits an immediate trial to determine the amount and reasonableness of settlement and defense costs after summary judgment.

National Union Fire Insurance Co. of Pittsburgh, PA v. State Insurance Fund · filed 1995-12-28(c)

Accordingly, we remand for an immediate trial, pursuant to CPLR 3212 (c), for a determination of the reasonableness of National Union’s decision to pay $125,000 of the $185,000 settlement on behalf of Regional Scaffolding, as well as the amount and reasonableness of defense costs paid by National Union.

Section 3212(c) permits an immediate trial only when the sole dispute concerns the amount or extent of damages, or when the motion rests on a ground listed in CPLR 3211(a) or (b).

Tache-Haddad Enterprises v. Melohn · filed 1996-02-06(c)

CPLR 3212 (c) does not provide a predicate for the method adopted by the motion court; the rule is not designed to provide an immediate trial for any and all kinds of issues, no matter how invitingly simple they may appear. On the contrary, it allows for an "immediate trial” only where the sole dispute is over the amount or extent of damages, or where the motion is based on one of the grounds enumerated in CPLR 3211 (a) (motion to dismiss a cause of action) or CPLR 3211 (b) (motion to dismiss a defense).

A fact issue unrelated to a ground listed in CPLR 3211(a) should not be immediately tried under CPLR 3212(c).

Gottesman Business Brokers, Inc. v. Goldman Fire Prevention Corp. · filed 1997-04-22(c)

We agree with plaintiff broker that the fact issue referred to the Special Referee—whether defendant sellers had contacts with the buyer during the exclusive period of the parties’ brokerage agreement—does not relate to any of the grounds enumerated in CPLR 3211 (a), and therefore should not have been immediately tried pursuant to CPLR 3212 (c), whether before a Special Referee or otherwise (see, Marshall, Bratter, Greene, Allison & Tucker v Mechner, 53 AD2d 537).

CPLR 3212(c) permits an immediate trial on damages when summary judgment resolves liability but the amount of damages remains disputed.

Attorney's Process & Research Service Inc. v. American Process & Research Corp. · filed 1998-05-26(c)

Accordingly, this court finds that the question of what damages should be awarded is a question best left to a jury. As the matter is trial ready and a day certain for June 15, 1998 has been set, an immediate trial will be held on the issue of damages, pursuant to CPLR 3212 (c).

CPLR 3212(c) permits an immediate trial to determine damages remaining after partial summary judgment.

Capital Funding Services, Inc. v. Focus Real Estate Management, Inc. · filed 1999-03-08(c)

We note, however, that the plaintiff is entitled to partial summary judgment in the principal amount of $17,499.77. Accordingly, the matter is remitted to the Supreme Court, Nassau County, for an immediate trial pursuant to CPLR 3212 (c) to determine the amount of damages in excess of $17,499.77.

Section 3212 does not permit posttrial summary judgment when the trial revealed several questions of fact.

Tri-State General Remodeling Contractors, Inc. v. Baijnauth · filed 2002-11-27

Summary judgment as posttrial relief is inappropriate since the trial itself showed that several questions of fact were involved.

Section 3212(b) asks whether evidence raises a factual issue for trial; a summary judgment ruling does not decide whether that evidence is admissible at trial.

R.G. Egan Equipment, Inc. v. Polymag Tek, Inc. · filed 2002-12-12(b)

Summary judgment is a determination as to whether an issue of fact exists (CPLR 3212 [b]). ... The decision of the Appellate Division, Fourth Department, on a summary judgment motion is not res judicata nor the law of the case on whether the June 1994 letters of Eileen Donadío are admissible at the time of trial nor determinative of the application of the attorney-client privilege on the admissibility of these letters.

Section 3212(c) permits a court to order a limited trial of a material factual issue raised on summary judgment when resolving it could dispose of the proceeding.

272 Sherman, LLC v. Vasquez · filed 2004-03-12(c)

Since respondent’s motion and petitioner’s opposition presented a material factual issue which, if determined in respondent’s favor, would prevent petitioner from maintaining its cause of action ... and be dispositive of the proceeding (CPLR 3212 [c]; ...), the court ordered a trial on this limited issue.

CPLR 3212(c) permits an immediate trial of factual issues remaining after summary judgment, but does not allow the court to send jury-triable issues to a referee without consent.

Trocom Construction Corp. v. Consolidated Edison Co. · filed 2004-05-25(c)

When, on a motion for summary judgment, only issues of fact remain which relate to the extent and amount of damages, “the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion, before a referee, before the court, or before the court and a jury, whichever may be proper” (CPLR 3212 [c]). ... Had the nisi prius court not granted Trocom partial summary judgment and Trocom thereafter prevailed at trial on the issue of liability, Con Ed would have been entitled to a jury trial on damages.

Section 3212(c) permits a court to order an immediate trial of factual issues raised by a summary judgment motion.

Roman v. Hudson Telegraph Associates · filed 2004-10-21(c)

Therefore, it was not an improvident exercise of discretion for the motion court to order an immediate trial of the issues of fact raised by the motion— specifically, the issue of the insurer’s liability for the third-party claims against Genuity (CPLR 3212 [c]).

Section 3212(c) permits a court to refer the calculation of damages to a special referee after granting summary judgment.

NYAT Operating Corp. v. GAN National Insurance · filed 2005-05-18(c)

The court shall therefore refer the issue of the calculation of damages to a special referee pursuant to CPLR 3212 (c) unless the parties stipulate to the amount of damages to be entered based upon the composition of the verdict in the Cabrera action.

Section 3212(c) permits an immediate trial to resolve a factual issue raised on a summary judgment motion, with extrinsic evidence admitted on that issue.

Krysty v. Town of Royalton · filed 2005-06-10(c)

Thus, we reverse the order insofar as appealed from and remit the matter to Supreme Court for an “immediate trial,” at which extrinsic evidence on the issue of the intent of the parties to the release will be admissible (CPLR 3212 [c]; see Brown v O’Neill, 8 AD3d 10, 11 [2004]; NAB Constr. Corp. v City of New York, 276 AD2d 388, 390 [2000]; see generally Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880-881 [1985]).

Section 3212(c) permits partial summary judgment on liability while leaving the extent of damages for a separate trial.

Turner Construction Co. v. OC Iron Works, Inc. · filed 2005-06-23(c)

Questions as to the extent of damages were properly left for separate trial (see CPLR 3212 [c]; Nitti v Goodfellow, 256 AD2d 1082, 1083 [1998], lv dismissed 93 NY2d 999 [1999]).

Section 3212(c) permits an immediate trial on a summary judgment motion when conflicting evidence raises a factual question about damages.

Levy v. Morgan · filed 2006-07-06(c)

Accordingly, inasmuch as the parties submitted conflicting testimony creating a question of fact regarding damages—i.e., the reasonableness of the replacement cost as reflected in the bill submitted by plaintiff—Supreme Court properly directed an immediate trial on the motion (see CPLR 3212 [c]; see also Poley Paving Corp. v United Cerebral Palsy Assn. of Sullivan County, 241 AD2d 847, 848-849 [1997]).

Section 3212(c) permits an immediate trial on damages after partial summary judgment establishes liability.

Plank v. Watson Bowman Acme Corp. · filed 2007-12-21(c)

With respect to that part of the motion seeking judgment on the counterclaim, we conclude that defendant is entitled to partial summary judgment on liability only, inasmuch as defendant failed to establish as a matter of law the amount of damages to which it is entitled. We therefore further modify the amended order accordingly, and we remit the matter to Supreme Court for an “immediate trial” on the issue of defendant’s damages on the counterclaim (CPLR 3212 [c]).

Section 3212(c) permits a court to order an immediate trial on damages after granting summary judgment on liability.

Torres v. American Building Maintenance Co. · filed 2008-05-20(c)

Further, the Supreme Court did not improvidently exercise its discretion in ordering an immediate trial on the issue of damages pursuant to CPLR 3212 (c).

Section 3212(c) permits an immediate trial on damages after summary judgment resolves the underlying claim.

Kessinger v. Sharpe · filed 2010-03-19(c)

We further direct the court upon remittal to conduct an immediate trial on damages pursuant to CPLR 3212 (c).

Section 3212(c) permits an immediate damages trial after summary judgment on liability; ordering one was within the court’s discretion where the party acquiesced.

Horizon Asset Management, LLC v. Duffy · filed 2013-05-23(c)

We find that the court did not abuse its discretion under CPLR 3212 (c) by ordering an immediate damages trial on the breach of contract and conversion counterclaims, since the record demonstrates that Duffy acquiesced to an immediate trial.

Section 3212(c) permits an immediate trial of a factual issue when it would expedite the disposition of a substantial portion of the controversy.

RICH, JOHN C. v. ORLANDO, GREG · filed 2013-07-05(c)

Thus, Supreme Court erred in failing to order an immediate trial on that issue inasmuch as a limited trial would have been “appropriate for the expeditious disposition” of a substantial portion of this controversy (CPLR 3212 [c]).

Section 3212(c) permits an immediate trial of a statute of limitations issue before the court reaches the merits of the claim.

DeepvBoies · filed 2014-10-23(c)

We also reject plaintiff's claim that Supreme Court erred by conducting the hearing pursuant to CPLR 3212 (c) and that it should have conducted a trial on the merits of his misappropriation claim. Supreme Court could not decide the merits of plaintiff's claim until it resolved the statute of limitations issue (53 AD3d at 950).

Section 3212(c) permits an immediate trial on damages when a summary judgment motion leaves a factual issue about the amount to award.

Halstead v. Fournia · filed 2015-12-10(c)

Inasmuch as plaintiffs' own motion papers left unresolved the issue of whether "a lesser amount than that claimed . . . will sufficiently compensate for the loss," Supreme Court correctly directed an immediate trial on the issue of damages (Jenkins v Etlinger, 55 NY2d at 39; see CPLR 3212 [c]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

CPLR 3212(g) findings limiting the issues for trial can support summary judgment when they go unchallenged and the opposing party raises no triable issue of fact.

Pavlova v. Nationwide Ins. · filed 2021-03-12(g)

Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant's motion or otherwise challenge the implicit CPLR 3212 (g) findings in defendant's favor, defendant is entitled to summary judgment dismissing the complaint.

A plaintiff’s failure to establish a defendant’s liability on summary judgment supports denial of an immediate trial on damages under § 3212(c).

MacKay v. Paliotta · filed 2021-07-14(c)

The failure to make such a prima facie showing required the denial of that branch of the plaintiff's motion which was for summary judgment on the issue of liability against TZM, regardless of the sufficiency of the opposing papers ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853). As a result, the Supreme Court also properly denied that branch of the plaintiff's motion which was for an immediate trial on the issue of damages pursuant to CPLR 3212(c) ( see generally Kutanovski v DeCicco , 122 AD2d 250, 251).

A pending third-party action may bar summary judgment in the main action in a proper case, but its existence does not automatically prevent judgment.

Manufacturers & Traders Trust Co. v. Barry Warehouses, Inc. · filed 1975-11-06(b)

We are aware that in a proper case the existence of a pending third-party action may serve as a procedural bar to the granting of summary judgment in the main action (cf. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212, p 434). However, such is not the case here.

Section 3212(e)(1) permits severance of a third-party action so that a plaintiff’s damages can be assessed without waiting for that action to conclude when severance causes no prejudice.

35 Hamilton Realty Co. v. Consolidated Edison Co. · filed 1997-04-22(e)(1)

As to the severance, there being no question of negligence on plaintiffs’ part, and as the third-party action may be a lengthy and involved proceeding in which plaintiffs’ position will essentially be that of a neutral, we discern no prejudice to Con Edison or other reason why plaintiffs should have to await the outcome of the third-party action before ascertaining their damages (CPLR 3212 [e] [1]).

Section 3212(e) leaves a stay of enforcement of partial summary judgment to the discretion of the court below.

Offset Paperback Manufacturers, Inc. v. Banner Press, Inc. · filed 1976-04-27(e)

The grant or denial of such a stay lies within the sound discretion of the court below (CPLR 3212, subd [e]; 4 Weinstein-KornMiller, NY Civ Prac, par 3212.09; Cohen and Karger, Powers of the New York Court of Appeals, § 151, p 597).

Section 3212(e)(2) allows a court to enter summary judgment on a claim while staying execution pending resolution of counterclaims.

Marine Midland Bank v. Stukey · filed 1980-04-08(e)(2)

Under the circumstances, as a matter of discretion, we'direct that summary judgment on the note may be entered, but execution thereof stayed pending resolution of the defendants’ counterclaims (CPLR 3212, subd [e], par 2; see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:31, C3212:32; Stigwood Organisation v Devon Co., 44 NY2d 922, 923).

Section 3212(e) permits a court to stay entry of a summary judgment while remaining claims are decided and to condition the stay on an undertaking.

Sandalo v. Intershoe Inc. · filed 1983-02-17(e)

Since Intershoe has a substantial counterclaim against plaintiff in connection with alleged breach of the underlying contract, the court should have stayed entry of the judgments and required the posting of a bond pending determination of the remaining causes of action. (CPLR 3212, subd [e].)

An unsupported counterclaim does not bar summary judgment or justify holding entry of the judgment in abeyance.

Peckham v. Peckham · filed 1983-10-06(e)(2)

It is well established that the mere assertion of a counterclaim, unsupported by proof that is in some way meritorious, ... will not bar summary judgment and should not result in an order holding entry of the judgment in abeyance ... In this regard, a review of the record reveals that defendant has entirely failed to come forth with proof to support her claim of fraud. This being the case, there exists no impediment to the entry of summary judgment.

Section 3212(e) permits summary judgment despite an unrelated counterclaim; a party seeking a stay of execution must substantiate possible prejudice.

P. S. Griswold Co. v. Cortland Glass Co. · filed 1988-03-24(e)

The counterclaim was thus unrelated and we agree with Supreme Court that there was not sufficient linkage on that basis alone to warrant imposing conditions on the grant of the summary judgment motion. Plaintiff was, therefore, properly awarded judgment unless defendants could show possible prejudice if execution of the judgment was not stayed pending resolution of the counterclaim (see, Stigwood Organisation v Devon Co., 44 NY2d 922, 923; see also, CPLR 3212 [e]).

Section 3212(e)(2) permits a court to stay execution of a judgment on one claim pending determination of a counterclaim.

Bartfield v. RMTS Associates, L. L. C. · filed 2001-05-15(e)(2)

Since the court eventually reinstated RMTS’s counterclaim, concluding that factual issues exist “as to whether Bartfield overdrew $200,000 of RMTS’s funds prior to his resignation and as to whether he has an obligation to reimburse RMTS for such monies,” we exercise our discretion and direct a stay of the execution of the judgment on the breach of contract claim pending determination of the counterclaim (CPLR 3212 [e] [2]).

Section 3212(e)(2) permits a stay of execution when the parties have claims against each other awaiting trial; a possible recovery from a different party is insufficient.

IDW Group, LLC v. Levine Insurance Risk Management Services, Inc. · filed 2013-04-12(e)(2)

Pursuant to CPLR 3212 (e) (2), this court will exercise its discretion to stay the execution of judgment when the parties have outstanding claims against each other that will be resolved at trial. ... Here, however, there are no outstanding claims between IDW and Liberty. ... The fact that such amount corresponds to a category of damages that IDW might recover from Levine is not a sufficient basis for a stay.

Section 3212(e)(2) permits the court to stay execution of a partial summary judgment pending trial when unresolved claims may produce setoffs.

Mosionzhnik v. Chowaiki · filed 2013-07-29(e)(2)

Pursuant to CPLR 3212 (e) (2), the execution of the $500,000 judgment is stayed pending the conclusion of the trial because of Mosionzhnik’s potential setoffs (i.e., the claims not at issue on these motions, such as defamation).

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

Port Auth. of N.Y. & N.J. v. Brickman Group Ltd., LLC · filed 2019-12-12(b)

Accordingly, Endorsement No. 17, like Endorsement No. 21, does not afford the Port Authority indemnity coverage for its liability to the plaintiffs in the underlying actions, and, on a search of the record pursuant to CPLR 3212(b), we grant the insurers summary judgment to that effect.

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

Wood v. State Bank of Long Island · filed 1994-04-04(b)

Ordered that the judgment is reversed, on the law, without costs or disbursements, the plaintiffs’ motion for summary judgment is denied, upon searching the record pursuant to CPLR 3212 (b), summary judgment is granted in favor of the defendant, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate judgment in accordance herewith.

Section 3212(b) allows a court deciding a summary judgment motion to search the record and grant judgment to the nonmoving party without notice or a cross motion.

Abramovitz v. Paragon Sporting Goods Co. · filed 1994-03-03(b)

Nor did the IAS Court commit reversible error in granting summary judgment in defendant’s favor dismissing the complaint upon plaintiff’s cross motion for partial summary judgment since the court, upon a summary judgment motion, may search the record and grant judgment to the non-moving party without necessity of notice or cross motion (CPLR 3212 [b]).

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

Shubert Foundation, Inc. v. 1700 Broadway Co. · filed 1992-01-07(b)

Although the tenant did not seek summary judgment, contenting itself to resist Shubert’s motion for such relief, we are empowered to award the same to it since a summary judgment motion searches the record.

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

In re the Estate of Payson · filed 1990-08-23(b)

The motion to dismiss the objections is denied, and upon a search of the record summary judgment is awarded to the objectant to the extent indicated (CPLR 3212 [b]).

Section 3212(b) permits a court hearing a summary judgment motion to search the record and award judgment where appropriate, even on questions not raised below.

Izzo v. Manhattan Medical Group, P. C. · filed 1990-10-25(b)

Even though these questions were not raised before the IAS court, this court, on a motion for summary judgment, has the power to search the record and award judgment where appropriate.

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

McIntyre v. Beaver Dam Winter Sports Club, Inc. · filed 1990-07-02(b)

Although the defendants Sigurd and Odny Rodge did not move for summary judgment, we find, upon searching the record, that they are also entitled to such relief as a matter of law (see, CPLR 3212 [b]).

Section 3212(b) allows a court hearing a summary judgment motion to search the record and award judgment where appropriate, even without a cross motion.

CPC International Inc. v. McKesson Corp. · filed 1987-02-19(b)

A motion for summary judgment, irrespective of by whom made, invites a court to search the record and to award judgment where appropriate (CPLR 3212 [b]; Fertico Belgium v Phosphate Chems. Export Assn., 100 AD2d 165).

Section 3212(b) allows a court deciding a summary judgment motion to search the record and award partial summary judgment to the opposing party.

In re the Estate of DiJurico · filed 1987-01-06(b)

Since the motion for summary judgment searches the record (CPLR 3212 [b]), respondents are awarded partial summary judgment dismissing the petition to that extent and the items of the account requesting that relief are disallowed.

Section 3212(b) allows a court deciding a summary judgment motion to search the record and grant summary relief to any party entitled to it.

In re the Estate of Devita · filed 1986-06-16(b)

Furthermore, insofar as the making of the motion for summary judgment invites the court to search the record and to grant summary relief to any party entitled thereto (CPLR 3212 [b]), the court finds that the plan is a testamentary substitute subject to petitioner’s right of election as set forth in her notice and severs that claim from the others set forth in the notice of election filed by petitioner.

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

Under 21 v. City of New York · filed 1985-05-07(b)

Accordingly, the orders and judgments (each one paper) of the Supreme Court, New York County (Klein, J.), entered on October 5, 1984, and the order and judgment (one paper) of the Supreme Court, New York County (Klein, J.), entered October 4, 1984, which granted each plaintiff’s motion for summary judgment invalidating elements of Mayoral Executive Order No. 50 and regulations promulgated thereunder, should be modified, on the law, without costs, the motions for summary judgment denied, and upon search of the record (CPLR 3212 [b]), summary judgment granted to defendants declaring that Mayoral Executive Order No. 50 and regulations promulgated thereunder are constitutional and valid, and otherwise affirmed.

CPLR 3212(b) permits a court reviewing the denial of summary judgment to search the record and grant judgment to the moving party’s adversary when warranted.

Garson v. Garson · filed 1984-11-13(b)

On review of the denial of plaintiff’s motion for summary judgment this court is empowered to search the record and may ... instead, if warranted, grant summary judgment to plaintiff’s adversaries (see CPLR 3212, subd [b]; ...). In this case we find no issues of fact and accordingly we grant summary judgment to defendant and the Center and the provisions in the by-laws granting defendant, his successor or assignee three votes per share of stock and three votes as a director are declared valid.

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

Teddy's Drive In, Inc. v. Cohen · filed 1976-11-01(b)

We have searched the record pursuant to defendant Cohen’s motion for summary judgment (see CPLR 3212, subd [b]; Peoples Sav. Bank of Yonkers v County Dollar Corp., 43 AD2d 327, affd 35 NY2d 836), and hold that plaintiff is entitled to summary judgment against Cohen on the question of liability.

CPLR 3212 permits a court considering a plaintiff’s summary judgment motion to search the record and examine the complaint for sufficiency.

Village of Southampton v. Platt · filed 1976-12-06

Although that argument was not made by defendant on her motion to dismiss the complaint, summary judgment searches the record and the court is empowered, on a motion for summary judgment made by a plaintiff, to check the complaint for sufficiency (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:23, p 443).

Section 3212 requires the court to search the record on a summary judgment motion and permits judgment when no factual issues remain.

City of New York v. New York Jets Football Club, Inc. · filed 1977-05-11(b)

The Jets’ motion must be denied. As stated earlier there are no factual issues remaining. Summary judgment will be granted against the Jets and the NFL.

Section 3212(b) directs a court considering a summary judgment motion to search the record and determine whether either side is entitled to judgment.

Grant v. Board of Elections · filed 1978-11-03(b)

The cross motion for summary judgment shall be considered first. To do so of course, means to search the record to see if either side is entitled to that relief (CPLR 3212, subd [b]).

CPLR 3212(a) permits an appellate court to search the record on a summary judgment motion and award judgment to a party that did not appeal.

Southern Associates, Inc. v. United Brands Co. · filed 1979-03-27(a)

As the dissent notes, plaintiff has not appealed from the order of Special Term. Such fact does not preclude this court from awarding it summary judgment since we are empowered to search the record on a motion for summary judgment.

Section 3212(b) permits a court deciding a summary judgment motion to search the record and dismiss a claim supported by that search.

Country Wide Insurance v. Rodriguez · filed 1980-03-31(b)

A motion for summary judgment searches the record. (CPLR 3212, subd [b]; Wiseman v Kraus, 24 AD2d 869.) The court therefore also dismisses Country Wide’s action for indemnity from Padilla, its insured.

A motion for summary judgment under § 3212(b) searches the record, allowing the court to consider facts revealed by the motion.

Rand v. New York Times Co. · filed 1980-07-03(b)

A motion for summary judgment searches the record (see CPLR 3212, subd [b]; Wiseman v Knaus, 24 AD2d 869), and we are on notice that the factual basis for the expression of the derogatory opinion may be false.

Section 3212(b) permits an appellate court reviewing a summary judgment order to search the record and grant judgment to either party, even without a cross appeal, when only questions of law remain.

Jim, Jack, & Joe Realty Corp. v. Rothenburg · filed 1980-10-06(b)

Where, as in the case at bar, it is clear from the moving papers that the only dispute between the parties concerns questions of law, the court, on appeal from an order granting or denying summary judgment, may search the record and grant such relief to either party, even in the absence of a cross appeal (CPLR 3212, subd [b]; Peoples Sav. Bank of Yonkers, N. Y. v County Dollar Corp., 43 AD2d 327, 334, affd 35 NY2d 836).

Section 3212(b) requires the court to search the record on a summary judgment motion and consider prior answering affidavits that raise factual questions.

A. E. Nathan Co. v. Stengel · filed 1980-11-25(b)

Appellants’ failure to submit answering affidavits on these latter motions, a practice not sanctioned by this court, does not change the subsequent determination. A motion for summary judgment searches the record (CPLR 3212, subd [b]) and the court had before it, from the prior motion, appellants’ answering affidavits which raised questions of fact. Thus, Special Term erred in granting plaintiffs motion for summary judgment.

Section 3212(b) allows a court to search the record on a summary judgment motion and grant summary judgment to any party entitled to it.

Buffalo Seminary v. McCarthy · filed 1980-12-19(b)

In any event, the motion and. cross motion for summary judgment search the record and the court may grant summary judgment to any party so entitled.

A court may decline to search the record and grant summary judgment to the opposing party when the parties lacked notice that a dismissal motion would be treated as one for summary judgment and possible defenses remain.

Rahabi v. Morrison · filed 1981-07-06

We have not searched the record and granted summary judgment to plaintiff because, contrary to the view of Special Term, it is our opinion that the parties should have been notified of the court’s intention to treat the motion as one for summary judgment (see CPLR 3211, subd [c]), and because the defendants may possibly be able to show either that they were justified in excluding plaintiff because of misuse of the easement (see 25 Am Jur 2d, Easements & Licenses, § 107) or his refusal upon demand to pay the percentage of real property taxes levied upon the servient estate as required in the instrument by which the easement was created.

Section 3212(b) permits the court to search the entire record on a summary judgment motion to determine whether either party is entitled to judgment.

Lautner v. Catarelli · filed 1982-01-07(b)

On a motion for summary judgment, the court will search the entire record to determine if either party is entitled to judgment.

Section 3212(b) permits a court to search the record on a summary judgment motion even without a cross motion, and an appellate court may exercise that power.

Carroll v. New York Property Insurance Underwriting Ass'n · filed 1982-05-11(b)

On a motion for summary judgment, a court is empowered to search the record, even in the absence of a cross motion.

Section 3212(b) permits a court reviewing a summary judgment motion to search the record and address a meritless defense despite the opposing party’s failure to cross-appeal.

Gray v. Myren · filed 1982-07-01(b)

Although plaintiff has not cross-appealed that part of the order which granted defendant leave to amend its answer, our search of the record reveals that there was no merit to the proposed defense.

Section 3212 permits a court to search the record on a summary judgment motion and award judgment when no factual issues remain.

Trajam Realty Corp. v. Hirschfeld · filed 1982-07-01

Plaintiff’s motion having been brought under CPLR 3212, Special Term searched the record and awarded summary judgment to defendants-respondents dismissing the first and second causes in the complaint. We have also searched the record and agree with Special Term that there are no factual issues. On this record therefore we deem it proper to sustain the causes stricken by Special Term and, since we find the facts sufficient therefor, to award summary judgment to plaintiff for the relief sought..

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

Doyne v. Kerner · filed 1983-07-11(b)

Although defendants did not cross-appeal, this court may search the record and grant them partial summary judgment (see CPLR 3212, subd [bl; Jim, Jack & Joe Realty Corp. u Rothenburg, 78 AD2d 634).

Section 3212(b) empowers a court deciding a summary judgment motion to search the record.

Ferguson v. Utica Mutual Insurance · filed 1983-07-28(b)

Although the court was empowered to search the record on Allstate’s motion (CPLR 3212, subd [b]), it was hampered in this task by the moving party’s nondisclosure and misstatement as to the prior decision of Justice Levine.

A summary judgment motion searches the record and requires the court to determine whether the petition states a viable claim for relief.

In re Lambert · filed 1983-05-17

A motion for summary judgment searches the record (Wilkinson v Skinner, 34 NY2d 53), and requires a determination in the first instance that the child abuse petition states facts sufficient to constitute a cause of action, or, in this instance, a viable claim for relief.

Under CPLR 3212(b), a court reviewing a denied summary judgment motion may search the record and grant summary judgment to the opposing party when warranted.

Lopez v. Senatore · filed 1983-11-14(b)

Notwithstanding defendants’ abandonment of their cross appeal from that portion of Special Term’s order denying their cross motion to dismiss the complaint (CPLR 3211), on review of the denial of plaintiff’s motion for summary judgment this court is empowered to search the record and may instead, if warranted, grant summary judgment to plaintiff’s adversary (see CPLR 3212, subd [b]; Peoples Sav. Bank v County Dollar Corp., 43 AD2d 327, affd 35 NY2d 836; cf. Hecht v City of New York, 60 NY2d 57).

Section 3212(b) permits a court to search the record and grant summary judgment to the party against whom the motion was made, but unresolved questions of fact can prevent judgment.

Ferguson v. Ferguson · filed 1983-11-17(b)

Although we have authority to search the record and grant summary judgment in favor of the party against whom it was sought (see CPLR 3212, subd [b]; ...), the intent of the parties herein as to whether an easement was created and, if so, the scope of such easement is not evident from the face of the agreement of November 12, 1976 or from the accompanying documents in the record.

Section 3212(b) permits a court to search the record and grant summary judgment to the opposing party when warranted, even if that party did not request it.

Cais v. Pichler · filed 1984-03-02(b)

On a motion for summary judgment, the court is empowered pursuant to CPLR 3212 (subd [b]) to search the record ... and, if warranted, grant summary relief to the movant’s adversary, even though the latter did not request such relief.

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

Overseas Development Bank in Liquidation v. Nothmann · filed 1984-10-22(b)

Accordingly, the order and judgment (one paper) entered March 3, 1983 should be reversed, on the law, plaintiff’s motion for summary judgment in its favor should be denied, and upon searching the record (CPLR 3212, subd [b]), summary judgment should be granted in favor of defendants dismissing the action.

CPLR 3212 permits a court to search the record and strike an affirmative defense even when the opposing party has not cross-moved to strike it.

Vigliarolo Bros. v. Lanza Contracting Corp. · filed 1985-03-29

While the plaintiff has not cross-moved to strike this affirmative defense, I may search the record as ... authorized by CPLR 3212. I find that the allegation is not required, and accordingly, sua sponte, strike the same.

Section 3212(b) permits a court to search the record and grant summary judgment on a failure-to-state-a-claim ground raised in the defendants’ answers, even when their motions rely on timeliness.

Brown v. Village of Albion · filed 1985-05-29(b)

Despite the fact that defendants’ motions for summary judgment are based on plaintiff’s alleged failure to timely serve his complaint, “the court will search the entire record to determine if either party is entitled to judgment. (CPLR 3212, subd [b]). Furthermore, the defense of failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7) may serve as the basis for summary judgment.” ... This court, therefore, grants partial summary judgment in defendant’s favor as to plaintiff’s failure to state a cause of action based on Penal Law § 35.30.

Section 3212(b) requires the court to search the record on a summary judgment motion and permits it to grant judgment to any appropriate party.

Conti v. Citrin · filed 1985-08-08(b)

On a motion for summary judgment, the court must search the record, and can grant such judgment to any party as it deems appropriate.

Section 3212(b) permits a court to search the record and grant summary judgment to any party when no relevant question of material fact remains.

Kaplan v. Reuss · filed 1985-11-18(b)

Although defendants have not appealed from the Surrogate’s denial of their cross motion for summary judgment, this court has the power to search the record and grant summary judgment to any party in an appropriate case (CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112; Peoples Sav. Bank v County Dollar Corp., 43 AD2d 327, 334, affd 35 NY2d 836 on opn at App Div). In the absence of any relevant question of material fact, we deem this to be such a case and grant summary judgment to defendants in order to bring this litigation to a more timely end.

Section 3212 permits a court to search the record and grant summary judgment dismissing the entire complaint.

Riina v. Bitterlich · filed 1985-11-25(b)

Order entered November 13, 1984 modified, on the law, by adding a provision thereto that, upon searching the record, defendants are granted summary judgment dismissing the complaint in its entirety.

Section 3212(b) allows a summary judgment motion to search the record and permits judgment for the opposing party on an issue established as a matter of law.

Eenkhoorn v. New York Telephone Co. · filed 1986-01-07(b)

Inasmuch as a motion for summary judgment searches the record (CPLR 3212 [b]) this court holds, as a matter of law, that upon the trial of this action, defendant will be precluded from maintaining a "shop right” theory and plaintiff is granted summary judgment in that respect.

Section 3212(b)'s power to search the record does not allow a court to award summary judgment when the instrument is ineligible for the procedure under CPLR 3213.

Dresdner Bank AG. v. Morse/Diesel, Inc. · filed 1986-03-11(b)

Dresdner also argues that even if CPLR 3213 is unavailable as a procedural remedy it is entitled to summary judgment notwithstanding, since under CPLR 3212 (b) this court has the power to search the record and award such judgment as is warranted ... That argument fails since if CPLR 3213 is inapplicable the matter is not before us at all for summary judgment consideration.

Section 3212(b) permits a court to search the record on a summary judgment motion and grant relief warranted by the record.

Allstate Insurance v. Hertz Corp. · filed 1986-04-14(b)

Order reversed, on the law, without costs or disbursements, and, upon searching the record (see, CPLR 3212 [b]), action dismissed as premature.

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party when the uncontroverted facts and law warrant it.

Gonzalez v. Port Authority of New Jersey · filed 1986-04-14(b)

A search of the record in this case, pursuant to CPLR 3212 (b) (see, Schorr v Bank of N Y., 91 AD2d 125), reveals that the uncontroverted facts and the law outlined above preclude recovery on the part of the plaintiff.

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

Hettrick v. Lang · filed 1986-06-02(b)

Order reversed, on the law, without costs or disbursements, motions denied, and, upon searching the record, summary judgment is granted to the defendants dismissing the plaintiffs’ actions. ... Accordingly, Special Term should have granted summary judgment to the defendants dismissing the actions (CPLR 3212 M).

Section 3212 permits a court deciding summary judgment to search the record and grant judgment that the trial court could or should have granted.

Kotick v. Desai · filed 1986-10-20

Upon a motion for summary judgment, this court may search the record and consider all that is before it and on appeal may grant the judgment which Special Term could or should have granted (Matter of Knickerbocker Field Club v Site Selection Bd., 41 AD2d 539, 540).

CPLR 3212(b) permits a court considering a summary judgment motion to search the record and grant summary judgment where appropriate, even if that relief was not requested.

Simoni v. Civil Service Employees Ass'n · filed 1986-10-20(b)

Since plaintiffs joined in the Roemer motion for partial summary judgment, this court can search the record and grant summary judgment where appropriate, even if not requested (CPLR 3212 [b]; Fertico Belgium v Phosphate Chems. Export Assn., 100 AD2d 165, 171).

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

Manhattan & Queens Fuel Corp. v. Village of Rockville Centre · filed 1987-01-12(b)

Ordered that the order and judgment is reversed insofar as appealed from, on the law, with costs, the plaintiff’s motion for summary judgment is denied in its entirety, and, upon searching the record, summary judgment is granted to the defendant dismissing the complaint.

CPLR 3212(b) permits a court to search the record and grant summary judgment to a nonappealing party when another party’s motion and appeal place the matter before it.

Strawberry Lane, Inc. v. Fraser · filed 1987-04-09(b)

Preliminarily, we note that, despite Fraser’s status as a nonappealing party resulting from his failure to prosecute his appeal, this court is empowered, by virtue of First Federal’s motion and appeal, to search the record and grant him summary judgment if merited (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111; Friedman v Carey Press Corp., 117 AD2d 568, 569).

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

Bucci Imports, Ltd. v. Chase Bank International · filed 1987-07-20(b)

Therefore, we now find it appropriate to grant summary judgment to the defendants, as it is within our power to do (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111-112).

Section 3212(b) permits a court to search the record and grant summary judgment to any party when the motion papers give the affected party notice.

Ulysse v. Nelsk Taxi, Inc. · filed 1987-12-07(b)

Pursuant to this court’s power under CPLR 3212 (b) to search the record and grant summary judgment to any party and in view of the fact that notice has been given to the plaintiffs by the motion papers, we find that the claim against the defendants by the plaintiffs based upon the failure of the defendant Marc Resilard to leave the keys to the taxi at the repair shop must be dismissed as a matter of law.

Section 3212(b) permits a court to search the record on a summary judgment motion and grant judgment when the record establishes entitlement as a matter of law.

Chiasson v. New York City Department of Consumer Affairs · filed 1988-01-28(b)

In searching the record pursuant to CPLR 3212 (b) I find that the defendant City of New York has failed as a matter of law to demonstrate a basis for the numerical limitation contained in the incidental music exception to the Cabaret Law. ... Accordingly, summary judgment is granted in favor of the plaintiffs declaring that the portion of the incidental music exception of the Cabaret Law limiting the number of musicians who can play at unlicensed establishments to three is unconstitutional.

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

Clifton Steel Corp. v. County of Monroe Public Works Department · filed 1988-01-29(b)

We have searched the record on two appeals concerning this matter and elect to exercise our jurisdiction to grant summary judgment in favor of Morin, dismissing Hyland’s first affirmative defense of release (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111; CPLR 3212 [b]).

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

Wolf v. Atai · filed 1988-04-25(b)

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements, and, upon our search of the record (CPLR 3212 [b]), the provision of the order denying the plaintiffs’ motion for summary judgment is deleted, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate judgment in the plaintiffs’ favor.

Section 3212(b) permits a court to search the record and deny summary judgment when questions of fact remain.

Kulaka v. Fire Department Article I Pension Fund · filed 1988-12-29(b)

We further note upon searching the record (see, CPLR 3212 [b]) that questions of fact exist as to whether Inez and Charles Kulaka were validly married such that her cross motion for summary judgment was properly denied.