N.Y. C.P.L.R. § 3212

Section 3212 permits summary judgment when the papers establish entitlement to judgment as a matter of law and requires denial when a factual issue needs trial.

Gilberg v. Goffi · filed 1964-07-09(b), (c)

Under the current practice, a motion for summary judgment should be granted where, on the papers and proof submitted, a cause of action or defense “ shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party; ” and the motion should be denied where any party shows the existence of any issue of fact, other than an issue as to the amount or extent of damages, sufficient to require a trial (CPLR 3212, subds. [b], [c]).

Section 3212 permits summary judgment when the motion papers present no triable issues of fact.

Rever v. Nelson · filed 1965-01-25

In our opinion, the papers on the original motions for summary judgment presented no triable issues of fact; hence, summary judgment was properly granted in plaintiff’s favor.

Section 3212 summary judgment focuses on genuine factual issues and the substance of the claim.

Oxford Paper Co. v. S. M. Liquidation Co. · filed 1965-02-24

Whether the application for summary judgment is made under CPLR 3212 or 3213, the function of the court is to deal with genuine issues and to strive to reach the real substance of the facts.

On a CPLR 3212 motion, the complaint’s allegations are deemed true for purposes of deciding summary judgment.

Theroux v. Kedenburg Racing Ass'n · filed 1965-10-05

For the purpose of this motion, all the allegations in the complaint are deemed to be true, and to a marked degree are admitted (by failing to deny), in defendant’s answer.

Section 3212(b) permits summary judgment when the submitted papers establish entitlement to judgment as a matter of law and show no factual issue requiring trial.

Brotherton v. New York State Supply Corp. · filed 1965-12-02(b)

CPLR 3212 (subd. [b]) provides that summary judgment shall be granted if, upon the papers and proof submitted, “ the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” ... The papers submitted upon this motion do not show facts sufficient to require a trial of any issue of fact as to the defendant First Trust & Deposit Company.

CPLR 3212 permits a motion for summary judgment only after issue has been joined.

Graham v. Board of Supervisors · filed 1966-01-20

We agree with the Board of Supervisors that plaintiffs are not entitled to summary judgment prior to the joinder of issue herein. CPLR 3212 expressly states that such a motion may be brought only after issue has been joined.

Section 3212 does not permit summary judgment when questions of fact about a party’s performance remain unresolved.

National Automation Corp. v. Reinsurance Corp. · filed 1965-06-08

It is clear from a reading of the papers that questions of fact exist as to the performance of the contract by plaintiff. Whether the equipment furnished by the plaintiff has ever functioned properly, .or indeed, was ever accepted, thus entitling plaintiff to payment on the contract, are questions which cannot be resolved summarily. Plaintiff’s motion is denied.

Section 3212 permits summary judgment when no triable issue of fact remains.

First Trust & Deposit Co. v. W. W. Conde Hardware Co. · filed 1965-06-11

There being raised no triable issue of fact, summary judgment is granted in the sum of $87,229, with interest from April 22, 1963 at the rate of 6%.

CPLR 3212 permits summary judgment when no triable issue of fact remains and the moving party prevails on the legal issue.

Beta Sigma Rho, Inc. v. Moore · filed 1965-07-20

Pursuant to CPLR 3212, defendants move for summary judgment against the plaintiffs upon the ground that there are no triable issues of fact and also that, as a matter of law, there is no merit to the cause of action alleged in the complaint. ... The court in reviewing all of the papers and documents submitted by the parties, finds that there are no triable issues of fact. ... For the reasons stated, judgment should be awarded to defendants declaring the fraternity resolution of the State University valid and applicable to social organizations at the State University of New York at Buffalo.

Section 3212 requires denial of summary judgment on a cause of action with a disputed issue of fact.

Sanzone v. Niagara Mohawk Power Corp. · filed 1965-07-29

There being a disputed issue of fact as to the alleged destruction of a stone wall, as set forth in the second cause of action of the plaintiffs’ complaint, summary judgment will be denied as to this cause of action.

Section 3212 requires a party opposing summary judgment to make a factual showing of a triable issue.

Fitzgerald v. Morgenstern · filed 1965-11-08

No reason appears why defendant in this kind of action should not be held to the usual standard requiring a factual showing of a triable issue to defeat a motion for summary judgment.

Section 3212 does not permit summary judgment when the scope of an assignment depends on disputed facts and ambiguous contract language that require a trial.

Bush Homes, Inc. v. Franklin National Bank of Long Island · filed 1965-12-20

Under the circumstances, the construction to be given to the provisions governing the extent of the assets included in the sale “ depends upon the sense in which the words were used in view of the subject to which they relate,” and therefore a trial should be held, at which the court should take “proof of collateral facts and surrounding circumstances ” (Petrie v. Trustees of Hamilton Coll., 158 N. Y. 458, 464; Lachs v. Fidelity & Cas. Co. of N. Y., 306 N. Y. 357, 364).

Summary judgment may be granted when the pleadings and opposing submissions show no dispute as to material facts, even if allegations in the complaint have been denied.

Town of Greenburgh v. Board of Supervisors · filed 1966-01-06

The defendants have urged that there are issues of fact which require a trial. Various allegations of the complaint have been denied, but an examination of the pleadings in the light of the affidavits and briefs submitted in opposition to the motion discloses that there is no dispute as to the material facts.

Section 3212(b) requires denial of summary judgment when a triable issue of fact remains.

Phoenix Die Casting Co. v. Manufacturers & Traders Trust Co. · filed 1966-01-27(b)

The existence of this single issue of triable fact raised by the pleadings would alone defeat the granting of summary judgment under CPLR 3212.

Section 3212 does not permit partial summary judgment on liability when material factual issues remain about the collision and negligence.

Regnal Realty Corp. v. McBride Transportation, Inc. · filed 1966-03-28

Here, however, looking, as we must, at the record most favorably to the factual showing of the parties asserting a right to trial we find factual issues presented by appellant Sheeley’s answering affidavit as to whether the vehicle hit the building where respondent claims the damage occurred and, if it in fact did so, whether such contact was due to negligence on the part of the operator. Thus there are present disputed issues of fact wholly apart from the issues of damages, and accordingly the order appealed from must be reversed.

Section 3212 permits denial of summary judgment when the papers show factual issues that warrant a trial.

City of Rochester v. Diksu Corp. · filed 1965-06-15

Hence, as a matter of discretion, summary judgment is denied, so that the ultimate issues here may be determined upon a plenary trial.

Section 3212 permits summary judgment to provide ultimate relief when the motion presents only a question of law.

New York State Natural Gas Corp. v. County of Albany · filed 1965-08-24

Since only a question of law is involved in the motion ... for summary judgment, it can provide the necessary ultimate relief. (CPLR 3212.)

Section 3212 permits summary judgment when no question of fact is raised and only a question of law remains.

Treiber v. Lanigan · filed 1965-11-30

No question of fact has been raised in these proceedings but only a question of law. Summary judgment is therefore an appropriate remedy and will be granted to the plaintiffs here.

Section 3212 permits summary judgment when the papers and proof establish a claim or defense sufficiently to warrant judgment as a matter of law.

Keybro Enterprises v. Four Seasons Country Club Caterers, Inc. · filed 1966-04-28

The motion for summary judgment was pursuant to CPLR 3212, which permits support thereof “ by affidavit, by a copy of the pleadings and by other available proof ” and declares the “ motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” ... Accordingly, plaintiff cannot prevail on the present complaint under any view of the facts.

Section 3212(b) supports summary judgment when the proof would compel judgment for the moving party at trial.

Meyers v. I. D. Precision Components Corp. · filed 1966-06-13(b)

Upon such a record a trial court would have been compelled to direct judgment in defendant’s favor (CPLR 3212, subd. [b]).

Section 3212(b) requires a summary judgment movant to factually controvert asserted defenses and establish that they have no merit as a matter of law.

General Electric Credit Corp. v. Morrello · filed 1966-11-21(b)

The respondent has sufficiently raised triable issues of fact. Appellant, on the contrary, failed to sustain its burden of factually controverting the defenses predicated on the surety relationship alleged in the answer so as to establish as a matter of law that the “ defense has no merit”.

Section 3212 permits summary judgment in a negligence action when the undisputed facts establish liability and the plaintiff’s freedom from contributory negligence, leaving damages for assessment.

Cohen v. Blitz · filed 1966-12-01

The day finally arrived when an action in negligence was added to the list of actions where a motion for summary judgment could be entertained. ... Either the courts should adopt a more liberal attitude or CPLR 3212 should be amended to delete therefrom actions in negligence.

Section 3212 requires issue to be joined before summary judgment may be granted and bars judgment when triable issues of fact remain.

Amplo v. Di Mauro · filed 1967-01-17(a), (c)

Plaintiff’s cross motion for summary judgment is denied due to the existence of triable issues of fact and the nonjoinder of issue as to the second cause of action.

Section 3212 permits summary judgment when the opposing party fails to show a triable material issue of fact.

Wolf Studebaker, Inc. v. Studebaker-Packard Corp. · filed 1966-05-06

Plaintiffs have, in sum, failed to establish the merits of either cause of action, have failed to present any persuasive authority for the legal position they advance, and have failed to demonstrate the existence of any triable material issue of fact. ... Accordingly, defendants’ motion for summary judgment is granted and plaintiffs’ cross motion is denied.

Section 3212 does not permit summary judgment when triable issues of fact exist.

Fiammetta v. Iraci · filed 1966-07-05

Judgment reversed, with $10 costs and disbursements, and defendant’s motion fori summary judgment deified. In our opinion, triable issues of fact exist.

Section 3212 requires denial of summary judgment when the moving papers raise triable issues of fact.

Jones v. County of Herkimer · filed 1966-07-22

The Village of Ilion’s motion for summary judgment is denied because this court has found issues of fact raised in the moving papers.

Section 3212 requires denial of summary judgment when a factual issue about full disclosure and good faith must be resolved at trial.

Syracuse Television Inc. v. Channel 9, Syracuse, Inc. · filed 1966-11-30

The answering affidavit submitted by the plaintiff claims that there never was a full and complete disclosure of all the facts with respect to waste occasioned by the alleged negligence of the defendants, Dolan, Markson and Eagan. ... For this reason, the motion for summary judgment is denied and a trial must be held on the issue of full disclosure and good faith.

Section 3212 requires denial of summary judgment when a material factual issue remains for trial.

Reinertsen v. Fire · filed 1966-12-19

We cannot say that the delay in notifying the driver’s insurance carrier was unreasonable as a matter of law. Furthermore, the question of whether the driver’s insurance policy was in effect at the time of the occurrence is factually disputed (CPLR 3212).

Section 3212 permits summary judgment when disputed facts do not affect the legal question controlling the claim.

Saale v. Interstate Steel Co. · filed 1966-12-20

Finally, on any view there is no issue of fact between plaintiff and defendant, only a question of law as to the effect of plaintiff’s tenuous relation to the goods being sold at salvage sale by its insurer barring it from status as a holder in due course. ... Accordingly, the order and summary judgment in favor of plaintiff should be affirmed, with costs and disbursements to plaintiff-respondent.

Under CPLR 3212, summary judgment must be denied when the opposing party raises factual questions that should be resolved at trial.

Plotkin v. Disability & Casualty Inter-Insurance Exchange · filed 1967-02-21

On this record sufficient is shown to warrant a trial of the issue whether the death was accidental or a result of decedent’s willful knowledgeable act. Defendant has done more than merely plead ignorance. It has come forward with a recital of events, of its efforts to ascertain the facts and the result of such efforts which bear directly on the main issue. Factual questions are raised which should be explored upon a trial (CPLR 3212; Overseas Reliance Tours & Travel Serv. v. Same Co., 17 A D 2d 578).

Under CPLR 3212, summary judgment is denied when affidavits raise a factual issue about whether plaintiffs sustained special damages entitling them to sue.

Raimonda v. Cahn · filed 1966-06-06

In an action to compel the removal of a fence on defendants’ real property, allegedly erected and maintained by them in violation of the Building Zone Ordinance and Building Code of the Town of Huntington, plaintiffs, who own real property adjacent to that of defendants, appeal from an order of the Supreme Court, Suffolk County, entered January 4, 1966, which denied their motion for summary judgment pursuant to CPLR 3212. Order affirmed, with $10 costs and disbursements. In our opinion, the affidavits raise a factual issue as to whether plaintiffs sustained special damages entitling them to bring the action (cf. Cord Meyer Development Co. v. Bell Bay Drugs, 25 A D 2d 744 and cases there cited).

Section 3212 permits summary judgment when no fact is in dispute and the movant is entitled to judgment.

Orlando v. Board of Supervisors · filed 1966-07-19

We find that no fact is in dispute and plaintiffs are entitled to summary judgment declaring the present apportionment of the Genesee County Board of Supervisors in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and sections 1 and 11 of article I of the New York State Constitution.

Section 3212 does not allow a court to resolve disputed factual questions on summary judgment.

Saratoga Harness Racing Ass'n v. Agriculture & New York State Horse Breeding Development Fund · filed 1966-09-10

Whether or not the plaintiff has complied with the statute, and whether the plaintiff would be entitled to the sum of $20,516.06 or some other figure, are questions of fact and cannot be determined on a motion for summary judgment.

Section 3212 requires denial of summary judgment when disputed questions of fact require a trial.

Riviera Congress Associates ex rel. Lewy v. Yassky · filed 1966-12-30

On the remaining issue in this appeal — whether the plaintiffs have made out a case for summary judgment — we agree with the Appellate Division that disputed questions of fact are presented which require a trial.

Section 3212(b) requires denial of summary judgment when an issue of fact arises, except as to damages.

Stowell v. Berstyn · filed 1966-10-17(b)

Under such circumstances, the applicable statute is CPLR 3212 (subd. [b]), which provides that where an issue of fact (except as to damages) arises on a motion for summary judgment the motion must be denied.

Section 3212(a) permits a motion for summary judgment after issue has been joined.

Inland Credit Corp. v. Bluds · filed 1967-04-27(a)

After issue has been joined renewal of the motion for summary judgment, if plaintiff is so advised, will then be timely (CPLR 3212, subd. [a]).

Section 3212 permits summary judgment on liability when a factual dispute about the amount of damages remains for trial.

Clemente Bros., Inc. v. Peterson-Ashton Fuels, Inc. · filed 1968-03-11

The respondent having removed the buildings, structures and fixtures, the condition precedent to a suit for damages for the breach of the covenant has been performed. Summary judgment was, therefore, properly granted. The general denial in the answer raises an issue of fact as to the reasonableness of the costs of removal. The direction of a jury trial on the issue of damages was, therefore, proper.

Section 3212(a) makes a summary judgment motion premature before an answer has been served.

Elman v. Belson · filed 1968-10-29(a)

The motion to dismiss is denied without prejudice to defendant’s pleading in his answer a defense of lack of jurisdiction; the cross motion is dismissed as premature, no answer having yet been served (CPLR 3212, subd. [a]; Pisano v. County of Nassau, 41 Misc 2d 844, affd. 21 A D 2d 754).

Section 3212 does not permit summary judgment when the movant’s affidavits fail to show that the claim lacks merit and reveal factual issues.

Young v. Brooklyn Women's Hospital, Inc. · filed 1967-09-21

In support of the instant motipn defendant has submitted affidavits which, in the court’s opinion, do not contain facts showing a lack of merit in plaintiff’s cause of action. Actually, the defendant’s affidavits demonstrate the presence of issues (of negligence) which cannot be determined upon the basis of defendant’s proof.

Section 3212 permits summary judgment when the opposing party fails to raise a genuine triable issue of fact.

Glick & Dolleck, Inc. v. Tri-Pac Export Corp. · filed 1967-11-30

On the whole record defendant fails to raise any genuine triable issue of fact and the order and judgment appealed from should be affirmed, with costs to respondent.

Section 3212 permits summary judgment when the opposing answer and affidavit raise no triable issue of fact.

Custer v. Metropolitan Life Insurance · filed 1968-01-15

In my judgment the facts here are undisputed. Neither defendant Robert G. Custer’s answer nor his affidavit raises any triable issues of fact.

CPLR 3212 permits summary judgment dismissing a negligence claim when the papers establish no triable issue as to the defendant’s negligence.

Vermilyea v. Lee · filed 1968-07-08

Order reversed, with $10 costs and disbursements, and motion granted. ... Therefore, there can be no liability on his part and no triable issue as to whether he was negligent (see Rivera v. City of New York, 11 N Y 2d 856).

Section 3212(b) permits summary judgment when the papers establish entitlement to judgment as a matter of law and no triable issue of fact remains.

McCartney v. Austin · filed 1968-08-16(b)

The court concludes that the pleadings, affidavits and other papers submitted upon these motions demonstrate that there is no triable issue of fact presented upon these motions for summary judgment. ... Summary judgment should be granted defendants.

Section 3212(b) permits summary judgment in a tort claim when no genuine fact of substance remains in dispute.

Kaiser v. State · filed 1967-12-20(b)

There is, of course, no question that a party may demand the remedy of summary judgment in a cause which sounds in tort. ... However, such relief must be granted with caution and only where it becomes crystal clear that no genuine fact of substance remains at issue between the parties.

Section 3212 permits summary judgment in the Court of Claims when no factual issue remains for trial.

Travelers Indemnity Co. v. State · filed 1968-08-24

The claimant has cross-moved for summary judgment pursuant to CPLR 3212. ... Summary judgment relief is available in this court. ... Accordingly, the court concludes the claimant’s motion for summary judgment should be granted.

Section 3212(d) permits denial of summary judgment when the issues need to be explored at trial.

Stone v. Stone · filed 1968-03-04(d)

her motion for summary judgment, pursuant to CPLR 3212 (subd. [d]), and for alimony and counsel fees. ... As so modified, order affirmed, without costs. ... In our opinion, the issues herein should be explored on a trial.

Under CPLR 3212, summary judgment is unavailable when an affirmative defense raises issues of fact.

Hewitt v. Hewitt · filed 1968-04-18

Order, entered on December 1, 1967, denying plaintiff’s motion made pursuant to CPLR 3212 to strike defendant’s answer, dismiss the three affirmative defenses contained therein and for summary judgment, unanimously modified, on the law, to the extent of dismissing the first and third defenses, and as thus modified, affirmed, with $50 costs and disbursements to abide the event. ... We conclude, however, that there are issues of fact raised with respect to the second affirmative defense as set forth in the decision of Special Term.

Summary judgment must be denied when the parties present a triable issue of fact other than the amount or extent of damages.

Royce v. Rymkevitch · filed 1968-04-29(b)

Summary judgment must be denied if “ any party shall show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages.” (CPLR 3212, subd. [b].) There are clearly triable issues of fact presented regarding fault for not closing title in the sale to Royce.

Section 3212 requires denial of summary judgment when a genuine factual dispute requires a trial.

Callanan Road Improvement Co. v. Ter-Mel Construction Corp. · filed 1968-05-20

However, the improper performance argument was still advanced and we believe has raised factual issues which require a plenary trial.

Section 3212(b) does not permit summary judgment when a material and triable issue of fact remains.

Greenberg v. Bar Steel Construction Corp. · filed 1968-06-05(b)

While a jury might conclude that the agreement failed to adequately express the terms of the retainer to Bar Steel, it is apparent that this is at least a “ material and triable issue ” within the meaning of CPLR 3212 (subd. [b]).

Section 3212 does not permit summary judgment when the motion papers present questions of fact, even if the opposing reply lacks specific denials otherwise required by CPLR 3016(f).

Aluminum Building Products Corp. v. Martin Katz Corp. · filed 1968-05-27

In our opinion, questions of fact are presented by the motion papers ; and under such circumstances summary judgment may not be granted defendant even though plaintiff’s reply does not make the specific denials to defendant’s first counterclaim, allegedly pleaded pursuant to CPLR 3016 (subd. [f]) which are required by that rule to raise issues of fact as to delivery, performance, reasonable value or agreed price (cf. Curry v. Mackenzie, 239 N. Y. 267, 272; Anderson v. City of New York, 258 App. Div. 588, 591; Ias Becor Corp. v. Mezrahi, 22 A D 2d 898; Ias Bicor Corp v. Mezrahi, 26 A D 2d 636).

Section 3212(b) permits summary judgment when the submitted papers and proof warrant judgment as a matter of law.

Rochester Iron & Metal Co. v. Capellupo · filed 1969-12-30(b)

Upon all of the papers and proof submitted, the court finds that it is warranted as a matter of law in directing judgment in favor of the plaintiff. (CPLR 3212, subd. [b].)

Section 3212(b) permits summary judgment when no material issue of fact remains to be decided.

State Bank of Albany v. Kahn · filed 1969-01-17(b)

The facts as presented by both participants demonstrate that there are no material issues of fact to be decided and, hence, the matter in its present posture is ripe for summary judgment either way (CPLR 3212, subd. [b]).

Section 3212(b) requires the court to determine from all submitted papers that no factual issue remains before granting summary judgment.

Restina v. Aetna Casualty & Surety Co. · filed 1969-12-11(b)

To determine the present motion, the court is also required to determine that, based upon all of the papers submitted, there are no issues of fact surrounding the plaintiff’s alleged breach of the contract terms as alleged by the defendant (CPLR 3212, subd. [b]; Sebring v. Fidelity-Phenix Fire Ins. Co., 255 N. Y. 382; Beckley v. Otsego County Fire Ins. Co., 3 A D 2d 190).

Section 3212 permits summary judgment when no triable issue of fact exists.

Lord v. Marine Midland Trust Co. · filed 1969-12-11(b)

No triable issue of fact exists. ... Defendant should be granted summary judgment dismissing the complaint upon the merits.

Section 3212 does not permit summary judgment when affidavits raise factual questions that require a trial.

Kopperman v. Zar · filed 1969-02-26

The court omits any discussion concerning issues of negligence of one defendant as opposed to the other, since the affidavits submitted raise questions of fact which cannot be decided summarily and without a trial of the issues raised.

Section 3212 requires denial of summary judgment when the amount recoverable depends on facts that must be resolved at trial.

Newman v. Lefkowitz · filed 1969-04-29

1S0, here, although plaintiff may be entitled to contribution from defendant, inasmuch as the satisfaction of judgment given to defendant by Elaine cannot impair or prejudice plaintiff’s right of contribution, the extent of such contribution, if any, must await a trial at which plaintiff should be charged with the value of such property as he retained. Accordingly, the plaintiff’s motion for summary judgment is denied.

Section 3212(b) requires denial of summary judgment when a factual issue requires a trial.

Theodore v. Hartford Accident & Indemnity Co. · filed 1969-10-16(b)

On a motion for summary judgment (CPLR 3212, 3213) the court must deny the motion if any factual issue arises requiring a trial.

Section 3212 does not permit summary judgment for a plaintiff when the record leaves negligence or contributory negligence unresolved.

Ward v. Perry · filed 1970-02-05

While plaintiffs make out a strong ease against the defendant, it cannot be said, on the record before us, that the negligence of the defendant has been clearly proven as a matter of law. There is also the additional question of whether one of these plaintiffs was struck by defendant’s ear as he stepped into the roadway to call a taxi. So that, at least, as to this plaintiff, there is the question of contributory negligence.

Section 3212 requires denial of summary judgment when sufficient questions of fact remain under the applicable law.

Veverka v. Spinella · filed 1969-06-06

The defendant in actions 2 and 3 moves for summary judgment dismissing plaintiff’s complaint pursuant to CPLR 3212. This motion is denied. ... The pleadings amply set forth all the facts which would entitle the plaintiff to recovery, and upon the applicable law there are sufficient questions of fact entitling the plaintiff to the relief he is seeking.

Section 3212 requires denial of summary judgment when the movant has not established a right to judgment as a matter of law and factual issues remain.

Puffer v. City of Binghamton · filed 1969-06-09

To sustain defendant’s motion for summary judgment under CPLR 3212 would require the court to find that on the pleadings and the proof submitted herein a defense has been sufficiently established to warrant the court’s direction of a judgment in favor of the defendant as a matter of law, and a corollary finding that no issue of fact here exists. ... For reasons heretofore stated this court cannot so find. Defendant’s motion for summary judgment under CPLR 3212 should be denied.

Section 3212 requires denial of summary judgment when a factual question remains about whether an insurer’s conduct estopped it from asserting a policy time limit.

Albino Linoleum & Carpet Service, Inc. v. Utica Fire Insurance · filed 1969-10-23

We find that a question of fact exists as to whether defendants’ conduct was such as to lull.plaintiff into refraining from instituting action under the policy, so as to estop defendants from raising the defense of the time limitation specified in the policy ... and that it was error for Special Term to grant the motion for dismissal of the complaint (Sillman v. Twentieth Century-Fox, 3 N Y 2d 395, 402-404)..

Section 3212 requires the court to review the materials submitted on a summary judgment motion to determine whether triable issues exist.

Bird v. Meadow Gold Products Corp. · filed 1969-06-11

To determine whether triable issues exist, the court has reviewed all of the documents submitted on the motions for summary judgment, including the complaint, the answers, collective bargaining agreement, the arbitrator’s award and the order confirming it, as well as the memoranda of counsel.

Summary judgment under CPLR 3212 is improper when questions of fact must be determined at trial.

Iannucci v. Betts · filed 1970-04-06

Order reversed, on the law, without costs, and motion denied. ... There are questions of fact which should be determined at a trial (Bailer v. Shelton, 30 A D 2d 545; Baskerville v. Solomon, 30 A D 2d 965; Rosenthal v. Monastra, 27 A D 2d 749; Heinicke v. Mendelsohn, 28 A D 2d 719).

Section 3212 permits summary judgment when the proof shows no triable issue of fact and the moving party is entitled to judgment as a matter of law.

Diamond v. Mobil Oil Corp. · filed 1970-10-05

The court finds, as a matter of law, upon all the proof and papers submitted, that there is no triable issue of fact, and that the plaintiff is entitled to summary judgment.

Section 3212 permits summary judgment in a forfeiture action when no factual issue remains for a jury, despite the right to a jury trial.

People v. Waeldner · filed 1970-12-29

Therefore, it is this court’s opinion that there is no inconsistency between the constitutional requirement of a jury trial in the present action and the granting of summary judgment to either party on a proper showing of good cause therefor. If, pursuant to the provisions of CPLR 3212 the plaintiff presents proof which tends to support the allegations of the complaint, and demonstrates its right to the relief asked and if the defendant fails to controvert such proof in such fashion as to raise an issue for trial by the jury to which he is entitled, the court may properly determine that there are no issues to be tried and grant summary judgment accordingly.

Under CPLR 3212, a party opposing summary judgment must establish a genuine issue of fact rather than repeat allegations from its pleadings.

Atlantic New York Corp. v. United States Life Insurance · filed 1971-06-10

It was incumbent upon defendant to establish a genuine issue of fact and not simply rest in its affidavit upon what, essentially, had been averred in the ...pleadings.

Section 3212(b) permits summary judgment when the opposing party fails to show facts supporting a viable claim.

Gilbert v. Meyer · filed 1971-11-11(b)

Rather, we affirm because upon the motion for summary judgment plaintiff completely failed to show any facts indicating that an equitable cause of action exists. Hence, it is quite clear that the action is time barred. Nor do we believe that it was necessary to hold the motion in abeyance until plaintiff had an opportunity to complete pretrial proceedings, either with respect to allowing his own attorney to ask him any rehabilitating questions or with respect to the issue of when his cause of action arose.

Section 3212 permits summary judgment when no triable issue of fact remains.

Hamilton v. Bendick · filed 1970-08-20

There being no triable issue of fact, defendant is granted summary judgment dismissing the complaint on the merits.

Section 3212 requires denial of summary judgment when factual questions remain about a defendant’s role in the disputed transaction.

Wyckoff v. O'Neil · filed 1970-09-29

At the very least, questions of fact are raised as to the status of the defendants O’Neil and Harris in the selection of the contract form, in drafting its most important terms and in obtaining its execution. ... Motions denied.

Section 3212 permits summary judgment only when no material issue of fact exists.

Finger Lakes Racing Ass'n v. New York State Off-Track Pari-Mutuel Betting Commission · filed 1971-05-03

The plaintiffs, the defendants (except the City of Schenectady "and County of Greene), and the intervenors-defendants, all have moved for summary judgment pursuant to CPLR 3212. ... In view of the fact that summary judgments are sought, it is of course academic that if any one of these motions is to be granted, no material issues of fact can exist. ... Accordingly, defendants’ and defendants-intervenors’ motions for summary judgment are granted, and the motion of plaintiffs for the same relief is denied.

CPLR 3212 permits summary judgment when the plaintiff submits no evidentiary proof of actual malice and presents no triable issue of fact.

DeVore v. Time, Inc. · filed 1971-07-23

Because no evidentiary proof of defendants’ probable knowledge of falsity, or reckless disregard of the truth, is submitted on this motion summary judgment must be granted; otherwise the rights of defendant Time, Inc. as recognized in New York Times v. Sullivan (376 U. S. 254, supra), and subsequent cases —which rights are designed to preserve the public interest in a free and robust press would be frustrated (Washington Post Co. v. Keogh, 365 F. 2d 965 [D. C., 1966], cert. den. 385 U. S. 1011; Pagan v. New York Herald Tribune, 32 A D 2d 341, affd. 26 N Y 2d 941).

CPLR 3212 permits summary judgment when no issue of fact remains for trial.

Gondolfo v. New York Life Insurance · filed 1971-11-15

This motion for an order granting summary judgment, pursuant to CPLR 3212, to the defendant New York Life Insurance Company, on the grounds that no issue of fact remains for a trial, the insured’s material misrepresentation having been proven and an accord and satisfaction having been entered into by the plaintiff and on the further ground that no reply having been made to defendant New York Life’s counterclaim, the allegations therein are deemed admitted by plaintiff is granted.

When both parties move for summary judgment, their motions assume that no factual issue needs to be tried.

Morton L. Ackerman, Inc. v. Mohawk Cabinet Co. · filed 1971-01-27(b)

Implicit in both the motion and cross motion for summary judgment is the assumption that there is no issue of fact to be tried. (CPLR 3212, subd. [b].)

Section 3212(f) permits denial of summary judgment when material facts needed to resolve a claim remain disputed.

Downey v. General Foods Corp. · filed 1971-07-23(f)

While the development of the name and the concept may have been the result of an independent creation, as the defendant asserts, that is not an issue which may summarily be decided (cf. CPLR 3212, subd. [f]).

Section 3212(b) requires denial of summary judgment when a genuine material factual issue needs trial, but a dispute limited to damages does not bar judgment.

Newton-Waltham Bank & Trust Co. v. Bergen Motors, Inc. · filed 1971-10-20(b)

Thus, if the court entertains any doubt (except as to damages) as to whether a material and triable issue of fact exists, summary judgment will be denied.

Section 3212 requires denial of summary judgment when factual issues about the claim remain for trial.

Admiral Corp. v. Cohen · filed 1971-11-01

In any event, a trial should be held to determine exactly what items covered by what receipts were sold out of trust and exactly what arrangements were made, if any, for business continuation after the plaintiff discovered the out-of-trust sales. ... The plaintiff’s motion for summary judgment is denied.

CPLR 3212(e) does not permit partial summary judgment when triable issues of fact require a full trial.

Spring Valley Water Co. v. Cruz Construction Co. · filed 1972-01-31(e)

In an action by a public utility corporation, as a third-party beneficiary of a contract between defendant construction company and the Town of Ramapo, to recover for property damage, plaintiff appeals from an order of the Supreme Court, Rockland County, dated May 7, 1971, which denied its motion for partial summary judgment pursuant to CPLR 3212 (subd. [e]). ... In view of that concession we hold that triable issues of fact are presented which require a plenary trial.

Section 3212 permits summary judgment when the opposing party's allegations raise no triable question of fact.

Schneider v. Rockefeller · filed 1972-02-21

The mere statement that chapter 11 shows numerous examples of districts drawn to minimize the votes of some and maximize the votes of others in violation of the Fourteenth Amendment of the United States Constitution raises no questions of fact. ... This court is of the opinion that chapter 11 of the Laws of 1972 is in accord with the Constitution of the United States and with all of the subsisting provisions of article III of the New York State Constitution, and therefore dismisses the petitions in both proceedings and grants summary judgment declaring and acknowledging that chapter 11 of the Laws of 1972 is a Valid and constitutional apportionment statute.

CPLR 3212 permits summary judgment when the opposing papers raise no substantial factual question, but precludes it when a material fact issue remains.

Schwadron v. Freund · filed 1972-03-09

Certainly, as to these defendants, there is a material fact issue on the question of “ participation ” in the corporation diversion of trust fund assets that precludes an award of summary judgment.

Section 3212 permits summary judgment when the material facts are undisputed and the opposing party has no defense as a matter of law.

Equitable Life Assurance Society of United States v. Great Atlantic Insurance Co. of Delaware · filed 1972-04-07

The material facts in this action are not in dispute. ... There being no defense as a matter of law, plaintiff’s motion for summary judgment is granted.

Section 3212 permits summary judgment when the motion papers reveal no triable issue of fact and a party is entitled to judgment as a matter of law.

Dyer v. Great Eastern Insurance · filed 1972-08-17

The question for determination on a motion for summary judgment is whether, upon all the papers and proof submitted on that motion, the court should, as a matter of law, direst judgment in favor of either party. The papers submitted reveal no triable issue of fact on either of the motions under consideration.

Section 3212(b) permits summary judgment when the pleadings, affidavits and exhibits show no triable issue and judgment is warranted as a matter of law.

First National Bank v. Cutali · filed 1973-07-06(b)

In determining a motion for summary judgment, the test is whether a finding is justified from the pleadings, affidavits and exhibits that there is no defense to the action and that the court is warranted as a matter of law in directing judgment. If it clearly appears that no triable issue exists, the motion should be granted (CPLR 3212, subd. [b]; 6 Carmody-Wait 2d, New York Practice, § 39:11).

Section 3212 permits summary judgment when undisputed facts and documentary evidence clearly establish entitlement to judgment.

Schwalben v. Cholowaczuk · filed 1973-08-24

It is the court’s conclusion that the undisputed facts and the documentary evidence submitted on the instant motions clearly entitled tenant to summary judgment declaring that the lease was effectively renewed.

Section 3212 permits summary judgment in a probate contest when the proof presents no triable issue of fact.

In re the Estate of Heaney · filed 1973-09-25

There being no triable issue of fact on the proof submitted, the motion is granted (CPLR 3212).

Section 3212(b) precludes summary judgment when triable issues of fact remain.

Aiello v. B.E.P.R.A., Inc. · filed 1972-04-03(b)

In our opinion, there are triable issues of fact presented which preclude the granting of summary judgment (CPLR 3212, subd. [b] ; Haeger v. Slote, 22 A D 2d 826).

Section 3212(b) requires denial of summary judgment when triable issues of fact remain.

Donald W. Edwards Co. v. Hospital Supply & Development Co. · filed 1972-05-23(b)

The foregoing recital shows that triable issues of fact exist as to damages, and there are questions as well relating to the cessation of business, termination of the contracts and whether the contracts were breached. Summary judgment, therefore, should be denied (CPLR 3212, subd. [b]).

Under CPLR 3212(b), a factual dispute prevents summary judgment only if it is material to liability between the parties.

Bornhurst, Inc. v. Hartford Accident & Indemnity Co. · filed 1972-08-10(b)

However, the practice commentary to CPLR 3212 states that these fact questions must be material and relate to the question of liability between the parties before the court on this motion. ... Therefore, the first two proposed factual questions are irrelevant as between Bornhurst and Hartford.

Section 3212(b) requires denial of summary judgment when the facts raise a triable issue.

Fleck v. Perla · filed 1972-12-12(b)

“ The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fpot other than an issue as to the amount or the extent of the damages.” (CPLR 3212, subd. [b].)

Section 3212(b) permits summary judgment when the parties’ intent can be determined from written agreements without disputed extrinsic evidence.

Mallad Construction Corp. v. County Federal Savings & Loan Ass'n · filed 1973-05-02(b)

The test on summary judgment is whether the issue is one of law or of fact (CPLR 3212, subd. [b]).

Section 3212 does not permit summary judgment when a material factual issue requires a hearing and the opposing party must have an opportunity to challenge the evidence.

Grossman v. Rankin · filed 1973-08-27

Thus, whether the 16 positions remaining at issue may properly be classified as exempt essentially involves a factual determination on a hearing. Petitioner should not be foreclosed from offering proof to contravene the factual basis upon which the commission allegedly made its determination.

Summary judgment under CPLR 3212 is denied when a factual question must be resolved at trial.

Kedenberg v. Town of North Hempstead · filed 1973-10-11

Whether or not the defendant hasj in fact, maintained the sidewalk is a question of fact to be determined upon the trial. Motion by defendant for summary judgment, pursuant to CPLR 3212, is denied.

Section 3212 permits summary judgment when no triable issue is presented.

Lewis v. Jim's Boat Yard, Inc. · filed 1972-04-26

The motion for summary judgment is granted since no triable issue is presented and the matter is set down for inquest to be held before the court on the 17th day of May, 1972, at 9:30 a.m., for assessment of damages.

Section 3212 permits summary judgment when no factual issue requires a trial and the movant is entitled to judgment as a matter of law.

Binghamton Public Library Unit of Broome County Chapter of Civil Service Employees Ass'n v. City of Binghamton · filed 1972-05-03

There are no questions of fact sufficient to require a trial; plaintiffs have established as a matter of law the right to á declaratory judgment as follows: 1) the individual plaintiffs are employees of the Binghamton Public Library and not of the City of Binghamton and 2) the provisions of section 13 of the city’s Supplemental Charter regarding residency do not apply to library employees and cannot provide a basis for terminating library staff' employment or deeming such employment terminated because of nonresidency.

Section 3212(b) permits summary judgment when no genuine triable issue of fact exists.

Murray Adler Realty Co. v. Benerofe · filed 1973-07-02(b)

In our view, no genuine .triable issues of fact exist which preclude the granting of defendant’s cross motion (CPLR 3212, subd. [b]).

CPLR 3212 permits summary judgment when no material fact is disputed and only questions of law remain.

MacKay v. People · filed 1973-08-16

The parties are agreed, and it appears from the record, that no material issue of fact exists and that only questions of law are presented. ... Accordingly, plaintiffs’ motion for summary judgment is denied, in all respects, and summary judgment is granted to defendants.

Section 3212(b) does not permit summary judgment when a material fact is sharply disputed and neither side makes a proper evidentiary showing.

Capra v. Lumbermens Mutual Casualty Co. · filed 1972-11-02(b)

Inasmuch as the record discloses a sharply controverted material issue of fact as to whether a 45-day notice, required by subdivision 2 of section 14 of the plan, was sent to the insured, and neither Lumbermens nor plaintiffs-appellants has made a proper evidentiary showing ip. support of the motion and cross motion ... summary judgment in favor of either side is unwarranted (CPLR 3212, suhd. [b]; ... 301 N. Y. 118).

Section 3212(b) precludes summary judgment when a genuine issue of fact exists; the court gives the opposing party every favorable inference in deciding whether one exists.

Egan Real Estate, Inc. v. McGraw · filed 1973-01-18(b)

On these motions plaintiff is entitled to the benefit of every favorable inference which may be drawn from the pleadings, affidavits and examinations before trial; and we recognize that the presence of a genuine issue of fact will preclude summary judgment (CPLR 3212, subd. [b]). ... It is apparent from the affidavits and examinations before trial that no genuine issue of fact is presented.

CPLR 3212 permits summary judgment when no factual dispute remains and only legal liability must be decided.

Edwards Co. v. Long Island Trust Co. · filed 1973-09-19

Both Edwards and LITCO now move for summary judgment pursuant to CPLR 3212. There are no factual disputes in any of the claims asserted. ... Therefore, summary judgment is granted pursuant to CPLB 3212 in favor of Edwards and against LITCO in the amount of $6,000, plus interest on $3,000 from December 4, 1970, and on $3,000 from December 18,1970, costs and disbursements.

A party cannot obtain summary judgment under CPLR 3212 merely because its opponent declines to admit disputed matters in a CPLR 3123 notice.

Spawton v. James E. Strates Shows, Inc. · filed 1973-11-09

The plaintiffs make the point that the defendant has sought no protective order, and has refused to admit or deny the request submitted to it and, therefore, they are entitled to summary judgment. This line of logic, if that it be, cannot succeed.

Section 3212(b) makes the presence of a factual issue properly resolved by a jury the test for summary judgment.

Hartford Accident & Indemnity Co. v. Wesolowski · filed 1973-11-21(b)

At the same time the test on a motion for summary judgment is whether there are issues of fact properly to be resolved by a jury (CPLR 3212, subd. [b]).

Section 3212(b) requires summary judgment when the submitted proof warrants judgment as a matter of law and no factual issue requires a trial.

Latragna v. Colonial Life Insurance Co. of America · filed 1974-07-03(b)

CPLR 3212 (subd. [b]) proscribes that, “ The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” The rule further provides: “ the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.” ... Plaintiff’s motion for summary judgment is granted.

Summary judgment is unwarranted when affidavits and other evidence leave factual issues unresolved.

Diamond v. Liberman · filed 1973-11-08

Contrary to plaintiff’s contention, the affidavits and other evidentiary matter submitted do not resolve all issues of fact thus warranting summary judgment.

Section 3212 permits summary judgment when the opposing party’s allegations raise no triable issue.

Finnegan v. Silverman · filed 1974-06-03

plaintiff appeals from an order of the Supreme Court, Queens County, dated February 15, 1973, which denied his motion pursuant to CPLR 3212 for summary judgment against defendant Silverman. Order reversed, with $20 costs and disbursements, motion granted and ease remanded to Special Term for an assessment of the amount of reasonable attorneys’ fees, claim for which is part of plaintiff’s cause of action against defendant Silverman. The facts alleged by defendant Silverman raised no triable issues.

CPLR 3212 precludes summary judgment when triable issues of fact remain.

County Trust Co. v. Mora · filed 1975-01-08

Therefore, the court finds triable issues of fact as to whether the required disclosures were made prior to the consummation of the transaction and whether defendants were provided with a duplicate copy of the note, which preclude the granting of summary judgment.

Section 3212 permits summary judgment when no factual issue remains and the undisputed facts establish the moving party’s entitlement to relief.

State v. Coury · filed 1974-09-12

There is no factual issue to resolve. ... Summary judgment is granted to the plaintiff.

On a CPLR 3212 summary judgment motion, the court asks whether the plaintiff has a cause of action, rather than whether the complaint properly states one.

Bailey v. Diamond International Corp. · filed 1975-04-24

Furthermore, in the defendants’ statement under CPLR 5531 it is stated that the appeal is from an order denying defendants’ motion for summary judgment under CPLR 3212. ... Accordingly, for the purposes of this appeal, we will treat the motion as one for summary judgment. ... While the amended complaint is deficient in many respects, on this motion for summary judgment the criterion to be applied is whether the plaintiffs have a cause of action, not whether they have properly stated one.

A bare allegation that an engagement gift was unconditional does not defeat summary judgment when the opposing party presents no viable defense.

Friedman v. Geller · filed 1975-05-23(a)

To hold otherwise, would be stretching credulity to its breaking point. This would permit the donee by the barest of allegations to defeat summary judgment; and in reality, is she not being given the option of introducing a second exception to CPLR 3212 not contemplated by the Legislature?

Section 3212 permits summary judgment on a claim to recover defense costs after an insurer breaches its duty to defend.

Sucrest Corp. v. Fisher Governor Co. · filed 1975-06-06

Such a recovery may properly be the subject of a summary judgment motion (International Paper Co. v Continental Cas. Co., 35 NY2d 322, supra, reinstating the order of the Civil Court of the City of New York, granting plaintiff summary judgment in an action to recover legal fees and disbursements incurred in defending the underlying action).

Section 3212 permits summary judgment when the material facts are undisputed.

Finger Lakes Racing Ass'n v. Western Regional Off-Track Betting Corp. · filed 1975-08-25

There being no dispute of the material and salient facts herein, this court is empowered to award summary judgment on the instant motion.

Section 3212 requires issue to be joined before a party moves for summary judgment.

Star Ring Manufacturing Co. v. Fireman's Fund American Insurance Companies · filed 1975-10-24

The motions for summary judgment are premature since issue has not been joined (CPLR 3212; Milk v Gottschalk, 29 AD2d 698).

Section 3212 permits summary judgment when no factual question remains on the claim.

Seidel v. Werner · filed 1975-02-24

Since there are no factual questions raised as to Steven’s exercise of his testamentary power of appointment in Edith’s favor in that will provision, and since each of the other defendants’ conflicting claims to the share of trust principal has been dismissed, Edith’s motion for summary judgment is granted.

Section 3212 does not permit summary judgment when conflicting expert opinions raise a critical issue for a jury to decide.

Li Puma v. County of Rockland · filed 1975-03-20

This critical issue should not be decided by the court on the basis of the conflicting expert opinions expressed in the affidavits submitted on this motion for summary judgment, but should properly be decided by a jury after a plenary trial.

Section 3212 requires denial of summary judgment when the reasonableness and necessity of medical charges remain questions of fact for trial.

Scarola v. Goldman · filed 1975-04-18

Whether the plaintiff’s medical charges were reasonable and necessary is a question of fact to be determined at a trial (Maynor v Wrenn, 78 Misc 2d 193). Accordingly, defendants’ motion for summary judgment is denied.

Under CPLR 3212(b), summary judgment depends on whether factual issues remain for a jury.

Oppenheimer v. Dresdner Bank A. G. · filed 1975-12-31(b)

The test on a motion for summary judgment is whether there are factual issues to be resolved by a jury (CPLR 3212, subd [b]).

Section 3212(b) requires denial of summary judgment when the affidavits reveal material triable issues of fact.

Geller v. Mahsons Realty Corp. · filed 1975-05-29(b)

Such, together with defendant’s supporting affidavits and affirmations, initial and reply, present material triable issues of fact, including, without limitation, whether plaintiff’s decedent was constructively evicted (see Rockrose Assoc. v Peters, 81 Misc 2d 971; Rasch, Landlord and Tenant, 2d ed, § 930 and cases cited therein); and how long the repairs or construction overhead lasted (two weeks-Hittner affidavit) or one month-reply affidavit requiring denial of defendant’s motion for summary judgment. (See CPLR 3212, subd [b]; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.05c.)

CPLR 3212 precludes summary judgment when a claim presents triable issues of fact.

Muller v. Star Supermarkets, Inc. · filed 1975-07-18

Without determining the merits of plaintiffs’ claim, we conclude that the complaint states a cause of action for interference with contract and presents triable issues of fact which properly precluded Special Term from granting defendant’s motion to dismiss or for summary judgment.

Section 3212 does not permit summary judgment when the record reveals a factual issue about whether a defendant observed reasonable commercial standards in accepting stock certificates for transfer.

United States Fidelity & Guaranty Co. v. Coca-Cola Co. · filed 1975-10-21

plaintiff moved for summary judgment pursuant to CPLR 3212 against defendant Kleiner, Bell and Company, Inc. Study of the record discloses that an issue of fact exists as to the good faith "observance of reasonable commercial standards” by said defendant in accepting these "street name” certificates for transfer (Uniform Commercial Code, § 8-318).

Section 3212 precludes summary judgment when a factual dispute remains that could affect the movant’s entitlement to relief.

Metro Burak, Inc. v. Rosenthal & Rosenthal, Inc. · filed 1975-06-16

Notwithstanding that plaintiff’s levy was made pursuant to execution of judgment before the statutory requirements for the assignment for the benefit of creditors were completed, thus presumably entitling plaintiff to a priority, the court is of the opinion that a question of fact exists which precludes the granting of plaintiff’s motion for summary judgment.

Section 3212(b) precludes summary judgment when unresolved factual issues affect a defense.

Empire National Bank v. Monahan · filed 1975-07-11(b)

Therefore, it is necessary for the court to determine the fact, if it be such, of the nature and extent of the notification, if any, by the defendant of her agency or of her purchase of necessaries to each merchant with whom she dealt. These issues of fact preclude the granting of summary judgment.

Section 3212 requires denial of summary judgment when resolving a material contract ambiguity depends on extrinsic evidence of the parties’ intent.

Flushing Hospital & Medical Center v. Woytisek · filed 1975-11-17(b)

Whether the result of that ambiguity is to place on Blue Cross, the insurer, the duty to reimburse the insured for any amount in excess of one half of the total collected by the hospital (both from Blue Cross and from the insured) for the hospital services it provided the insured which were covered by the policy necessarily depends on a resolution of the intention of the parties, based upon extrinsic evidence. Thus, a plenary trial is required and the issues should not have been disposed of by summary judgment.

Under CPLR 3212, general denials and bare conclusory allegations do not raise a triable issue of fact in opposition to summary judgment.

Von Arx, A. G. v. Breitenstein · filed 1976-05-21

The general denials contained in defendant’s answer and bare conclusory allegation contained in defendant’s affidavit alluding to the "reasonableness” of and "agreement” pertaining to the invoiced prices of the accounts rendered by plaintiff, submitted in opposition to plaintiff’s CPLR 3212 motion for summary judgment, are totally insufficient to raise any triable issue of fact as to plaintiff’s damages or defendant’s liability on the contract (see Indig v Finkelstein, 29 AD2d 851).

Section 3212 does not permit summary judgment on an insurer’s good faith in settlement negotiations when the determination requires consideration of multiple factors.

Town of Poland v. Transamerica Insurance · filed 1976-07-02

So, too, in the instant appeal, whatever may be the appropriate standard for determining good faith, involving as it does many factors and considerations not here necessary for us to delineate, summary judgment is not the appropriate procedural vehicle for disposition of this case.

A motion for summary judgment is premature when the moving party has not pleaded to the complaint.

Monroe Abstract & Title Corp. v. Giallombardo · filed 1976-11-05(a)

Additionally, in view of Helen O’Neill’s failure to plead to the complaint, her motion for summary judgment was premature (CPLR 3212, subd [a]; Star Ring Mfg. Co. v Firemans Fund Amer. Ins. Cos., 49 AD2d 1007, 1008; Milk v Gottschalk, 29 AD2d 698).

Section 3212 requires a party seeking summary judgment to establish its claim or defense as a matter of law on the submitted papers and proof.

Van Opdorp v. Merchants Mutual Insurance · filed 1976-12-10

To succeed on its motion for summary judgment the defense of non-co-operation must be established "as a matter of law” upon all the papers and proof submitted (CPLR 3212).

Section 3212(b) does not permit summary judgment when a material issue, such as whether the parties had a contractual agreement, requires fact finding at trial.

Reno v. D'Javid · filed 1976-01-05(b)

The determination of this cause of action must await fact finding at trial on the issue of whether the parties had a contractual agreement covering the subject of the claim (see CPLR 3212, subd [b]; Robins v Finestone, 308 NY 543).

Section 3212 permits summary judgment when the opposing party has not demonstrated an issue of fact requiring trial.

Hamilton Mutual Realty Fund Inc. v. Band Realty Co. · filed 1976-04-19

Appellant has not demonstrated that there are any issues of fact to be decided at a plenary trial (see CPLR 3212).

Section 3212(b) does not permit summary judgment when triable questions of fact remain.

E. R. N. H. Corp. v. Wechsler & Schimenti · filed 1976-11-01(b)

As so modified, order affirmed insofar as appealed from, without costs or disbursements. There are triable issues of fact as to when the architect fully completed his obligation under the contract. Questions of fact also exist with respect to the other issues in this case.

Section 3212 permits summary judgment when no factual issue requires trial and the remaining question is one of law.

Perez v. Dumpson · filed 1976-11-08

Partial summary judgment is granted to defendants dismissing the complaint, there being no questions or issues of fact but only of law, as to those parts of the complaint which (a) seek an injunction against past, present or future obtainment from "recipients” of confessions of judgment by defendants, (b) seek the right to deem this a "class action”, (c) seek to vacate all of the confessions of judgment obtained by defendants (regardless of when obtained) and (d) seeks restitution for the entire proposed class, or part or parts of said class, for moneys collected or received by way of recoupment or through other civil or criminal process.

CPLR 3212 permits denial of summary judgment when triable questions of fact remain.

Gross v. Wager · filed 1976-11-22

We agree with the Special Term’s finding that there were triable questions of fact presented herein. Accordingly, the motion for summary judgment was properly denied (see CPLR 3212).

Section 3212(b) permits summary judgment in a negligence action when the proof establishes entitlement to judgment as a matter of law.

Farkas v. Cedarhurst Natural Food Shoppe, Inc. · filed 1976-02-23(b)

Notwithstanding the tenacity with which the courts have clung to the traditional role of the jury in personal injury actions which sound in negligence (see Siegel, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR, C3212:8, p 429), the Civil Practice Law and Rules does not bar the granting of summary judgment in negligence actions "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212, subd [b]; Andre v Pomeroy, 35 NY2d 361; Gerard v Inglese, 11 AD2d 381; Di Sabato v Soffes, 9 AD2d 297). That is precisely the situation here, for the undisputed facts make it clear that, as a matter of law, plaintiff, as a volunteer, has no cause of action in negligence against defendant.

Section 3212(b) permits summary judgment when there is no question of fact.

Ciavarella v. Hartford Accident & Indemnity Co. · filed 1976-03-03(b)

Accordingly, there being no question of fact, summary judgment is granted defendant (CPLR 3212, subd [b]).

Section 3212(b) requires denial of summary judgment when the evidence raises a question of fact.

Becker-Fineman Camps, Inc. v. Public Service Mutual Insurance · filed 1976-04-01(b)

A question of fact is clearly generated and summary judgment was properly denied (CPLR 3212, subd [b]).

Section 3212(b) requires denial of summary judgment when the motion papers leave factual questions for trial.

Francais v. Cusa Bros. Enterprises, Inc. · filed 1976-07-01(b)

Plaintiff has not established her first and second causes of action sufficiently to warrant the court as a matter of law in directing judgment in her favor (CPLR 3212, subd [b]). ... The motion papers clearly generate questions of fact which can only be resolved by a plenary trial.

CPLR 3212 requires a summary judgment movant to establish its claim as a matter of law on the submitted papers and proof.

Hartford Fire Insurance v. Masternak · filed 1977-01-21

Similarly, in order to succeed on its motion for summary judgment, plaintiff must establish its claim of non-co-operation "as a matter of law” upon all of the papers and proof submitted (CPLR 3212).

Section 3212 summary judgment is granted sparingly in automobile negligence actions when disputed facts bear on negligence or contributory negligence.

Gammarano v. De Luca · filed 1977-02-15

It has long been the practice of courts to grant summary judgment in automobile negligence cases sparingly, because "The very question of whether the defendant’s conduct amounts to 'negligence’ is inherently a question for the fact-trier in all but the most egregious instances” (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:8, p 430; see, also, 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.03).

Section 3212(a) permits a party to move for summary judgment any time after issue has been joined, even on the eve of trial.

Weiner v. Miller · filed 1977-03-28(a)

Defendants, having raised the defense of Statute of Limitations in their answers, could properly move for summary judgment at any time "after issue has been joined”.

Section 3212 permits summary judgment when no factual issues remain and the defenses are insufficient as a matter of law.

Bank Leumi Trust Co. v. Marine Midland Bank · filed 1977-04-19

Plaintiff, payor bank, seeks summary judgment pursuant to CPLR 3212. ... Accordingly, the court perceives no factual issues to be determined and that the affirmative defenses are insufficient ... as a matter of law, and judgment is awarded plaintiff in the sum of $5,076 together with interest, costs and disbursements.

A party may move for summary judgment only after issue has been joined; an earlier order deciding an issue in the action is premature.

Berger v. Lipkowitz Property, Inc. · filed 1977-05-26(a)

CPLR 3212 (subd [a]) provides that a party may move for summary judgment after issue has been joined. Special Term directed issuance of the stock certificate, thus determining ownership which was an issue in the main action, and thereby rendered a summary judgment. The question of standing in order to bring on the stockholder’s derivative action was therefore impermissibly decided prior to the joinder of issue.

Section 3212 permits summary judgment when no issue of fact requires a trial.

Wein v. Carey · filed 1977-03-31

The complaint stands dismissed on summary judgment under CPLR 3212. ... No issue of fact is presented requiring a trial.

Section 3212 requires denial of summary judgment when a material issue of fact must be resolved at trial.

Laura Roofing & Renovating Co. v. Board of Education · filed 1977-04-18

We hold that there is an issue of material fact which must be determined at the trial and about which the record is silent, viz., was defendant in ownership or control of Public School 81 at the time the eight plies of roofing were installed or, if not, did it know, when soliciting bids, that the existing roofing consisted of eight plies instead of the usual four (see Nordone Contr. Co. v City of New York, 269 App Div 1035, affd 295 NY 985).

Section 3212 requires denial of summary judgment when factual issues must be resolved at trial.

Arcuri v. Leighty · filed 1977-07-24

The motions for summary judgment by defendant and cross motion by plaintiffs are denied. The issues of fact are replete and must be determined by a plenary trial without prejudice to Trial Justice determinations at time of trial.

Section 3212 does not permit summary judgment when the movant's proof leaves a factual question unresolved.

Miller v. Higgins · filed 1977-05-19

No proof submitted by the movant conclusively refutes this inference, and therefore the condition of the brakes at the time of the inspection is a question of fact not resolvable upon summary judgment.

Section 3212 requires denial of summary judgment when the evidence raises questions of fact about whether the parties modified their agreement.

Allied Chemical Corp. v. Alpha Portland Industries, Inc. · filed 1977-07-12

In setting forth such evidence, defendant has raised questions of fact sufficient to defeat plaintiffs motion for summary judgment.

Section 3212 requires proof sufficient to establish entitlement to judgment as a matter of law.

Garvey. v. St. Paul Fire & Marine Insurance · filed 1977-07-12(b)

the legal services provided have not been specified and it has not otherwise been established sufficiently that the services were necessarily rendered. Thus we are unable to conclude as a matter of law that defendants must pay for all of the services rendered by plaintiffs (see CPLR 3212, subd [b]).

Section 3212(b) permits summary judgment when the submitted proof establishes a claim or defense sufficiently for judgment as a matter of law.

Lincoln First Bank v. Siegel · filed 1977-12-16(b)

A motion for summary judgment shall be granted if, upon all the papers and proof submitted, a cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party (CPLR 3212, subd [b]).

CPLR 3212 permits a summary judgment motion to be denied pending disclosure when facts needed to decide it require further development, with leave to renew afterward.

Citibank, N. A. v. Kielman · filed 1978-03-21

Defendant claims the facts and details of the foreclosure sale are known only to the plaintiff and that they are essential for the establishment of his defenses, and that therefore he should be afforded disclosure consistent with CPLR 3212. As it now stands, there are areas which need further exposition before the matter becomes ripe for determination, and therefore as a means of bringing these gray areas into the light, disclosure should be granted the parties, and if the facts warrant, after disclosure, the motion may be renewed.

Section 3212 generally discourages successive summary judgment motions unless the movant shows newly discovered evidence or other sufficient cause.

Graney Development Corp. v. Taksen · filed 1978-04-07

It is well settled that multiple summary judgment motions should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause (Abramoff v Federal Ins. Co., 48 AD2d 676; Levitz v Robbins Music Corp., 17 AD2d 801, 4 Weinstein-KornMiller, NY Civ Prac, par 3212.13; Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212 [Cumulative Annual Pocket Part, 1977-1978], C3212:21, p 57).

Section 3212 permits summary judgment when the opposing answer and affidavit raise no issue of fact requiring denial of the motion.

Aetna Life & Casualty Co. v. Jankiewicz · filed 1977-07-25

Neither defendant’s attorney’s answering affidavit nor defendant’s answer with counterclaim raise issues of fact which would compel denial of plaintiff’s motion for summary judgment.