N.Y. C.P.L.R. § 3212

Section 3212(b) permits a court to search the record only for a claim or issue that is the subject of the summary judgment motion.

Diamond Roofing Co., Inc. v. PCL Props., LLC · filed 2017-09-29(b)

We conclude that the court further erred in searching the record pursuant to CPLR 3212 (b) and granting summary judgment on an account stated theory to plaintiff, the moving party.

CPLR 3212(b) permits Supreme Court and the Appellate Division to search the record and grant summary judgment to a nonmoving party, but does not permit the Court of Appeals to do so.

Princes Point LLC v. Muss Development L.L.C. · filed 2017-10-19(b)

Finally, with respect to plaintiff’s request for “reverse” summary judgment, we note that, “[w]hile Supreme Court and the Appellate Division may search the record and grant summary judgment to a nonmoving party (see CPLR 3212[b]),” this Court may not (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 385 [2005], citing Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110–111 [1984]).

Section 3212(b) permits a court to search the record and award summary judgment to the nonmoving party on a branch of the motion.

Peters v. Smolian · filed 2017-10-25(b)

In light of this finding, the court’s award of summary judgment to the defendants on this branch of the plaintiffs’ motion was also proper (see CPLR 3212 [b]).

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

Touloupis v. Sears, Roebuck & Co. · filed 2017-11-08(b)

Accordingly, the Supreme Court properly granted that branch of Sears’ motion which was for summary judgment dismissing the amended complaint insofar as asserted against it and, upon searching the record, properly awarded summary judgment to Simon dismissing the amended complaint insofar as asserted against it (see CPLR 3212 [b]; Singh v City of New York, 136 AD3d at 643; Bernal v 521 Park Ave. Condo, 128 AD3d 750, 751 [2015]).

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

Mandarano v. PND, LLC · filed 2018-01-10(b)

Moreover, given the evidence presented on the motion, the court properly exercised its authority pursuant to CPLR 3212(b) in searching the record and awarding summary judgment to the nonmoving BBCN defendants with respect to an issue that was the subject of the motion before the court ( see Sang Woon Lee v Il Mook Choi, 132 AD3d 969, 971; Bernal v 521 Park Ave. Condo, 128 AD3d 750, 751).

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

Welenc v. Board of Directors of Polish & Slavic Fed. Credit Union · filed 2018-04-04(b)

Since the Board otherwise failed to establish, prima facie, that the petition was invalid, the Supreme Court properly, upon renewal and reargument, adhered to its original determination denying the Board's motion for summary judgment dismissing the complaint and, under the circumstances presented, properly exercised its authority to, in effect, search the record and award summary judgment to the plaintiffs ( see CPLR 3212[b]).

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

Liberty Equity Restoration Corp. v. Yun · filed 2018-04-04(b)

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

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

Bank of N.Y. v. Penalver · filed 2018-06-20(b)

Upon our authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court ( see CPLR 3212[b]), we award summary judgment to the appellant dismissing the cause of action to foreclose the subject mortgage insofar as asserted against him ( see CPLR 3212[b]; Homecomings Fin., LLC v Guldi, 108 AD3d 506; see also John T. Walsh Enters., LLC v Jordan, 152 AD3d 755; Bayview Loan Servicing, LLC v White, 134 AD3d 755; ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224; Great E. Bank v Chang, 227 AD2d 589).

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

Pagan v. Jordan · filed 2018-07-25(b)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court ( see CPLR 3212[b]; Bryant v Loft Bookstore Café, LLC , 138 AD3d 664, 666). Here, in light of our determination with respect to Alice's motion, we search the record and award summary judgment to Lesean Saulsbury dismissing the complaint insofar as asserted against him ( see Bryant v Loft Bookstore Café LLC , 138 AD3d at 666).

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

Vincent Crisafulli Testamentary Trust v. AAI Acquisition, LLC · filed 2018-08-10(b)

In light of the foregoing, the Court exercises its discretion to search the record and dismisses the third cause of action ( see CPLR 3212 [b]; see generally Dunham v Hilco Const. Co., Inc. , 89 NY2d 425, 429-430 [1996]; A.C. Transp. v Board of Educ. of City of NY , 253 AD2d 330, 338 [1st Dept 1999], lv denied 93 NY2d 808 [1999]).

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

Fair Chase Holdings II, LLC v. County of Dutchess · filed 2018-10-31(b)

The Supreme Court has the authority, pursuant to CPLR 3212(b), to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of [*2]the motion ( see Dunham v Hilco Constr. Co. , 89 NY2d 425, 429-430; Pope v Safety & Quality Plus, Inc. , 74 AD3d 1040, 1042; Murray v Murray , 28 AD3d 624, 625). We agree with the court's determination to search the record and award the defendant summary judgment dismissing so much of the complaint as sought to recover treble damages.

Section 3212(b) permits a court to search the record and direct judgment for a party when the parties have sufficiently discussed the issues.

New 110 Cipriani Units, LLC v. Board of Mgrs. of 110 E 42nd St. Condominium · filed 2018-11-27(b)

The court had the power to dismiss the complaint upon a search of the record, as on a motion for summary judgment ( see CPLR 409[b]; Matter of Friends World Coll. v Nicklin , 249 AD2d 393 [2d Dept 1998]; CPLR 3212[b]; Dunham v Hilco Constr. Co. , 89 NY2d 425, 429-430 [1996]). The court having determined that plaintiff's claims fell within the ambit of the arbitration agreement and that plaintiff was not entitled to a stay of the arbitration, the CPLR 7503(b) special proceeding was disposed of; the court had heard a thorough discussion of the issues by the parties that was sufficient to warrant directing judgment in favor of defendants ( see CPLR 3212[b]).

A court searching the record under CPLR 3212(b) should not award summary judgment when a material fact remains disputed.

Goetz v. Trinidad · filed 2019-01-09(b)

However, the Supreme Court should not have, upon searching the record, awarded summary judgment to the defendant dismissing the complaint and directing the return of the down payment to the defendant. ... Since a triable issue of fact existed as to whether the defendant's failure to close was willful, the Supreme Court should not have determined, at this juncture, that he was entitled to the return of his down payment.

CPLR 3212(b) permits a court to search the record and grant summary judgment to a party who did not move for it when the evidence establishes that party's entitlement.

Kesick v. Burns-Leader · filed 2019-02-28(b)

Although defendants' failure to meet their burden would normally end further inquiry, Supreme Court nevertheless searched the record and granted summary judgment in plaintiff's favor on the threshold issue of serious injury to plaintiff's cervical spine ( see CPLR 3212 [b]; Dunham v Hilco Constr. Co. , 89 NY2d 425, 429 [1996]). ... Given the objective medical evidence proffered with regard to plaintiff's cervical injuries, including comparison of the preaccident CT scan and postaccident MRI of plaintiff's cervical spine, the quantitative evidence with respect to plaintiff's diminished range of motion and the medical opinions of both Seigel and Foster that such injuries were causally related to the August 2012 accident, we find no error with Supreme Court's determination that plaintiff was entitled to summary judgment on the issue of serious injury under the significant limitation of use category ( see Toure v Avis Rent A Car Sys., Inc. , 98 NY2d at 350; McHugh v Marfoglia , 65 AD3d 828, 829 [2009]).

Section 3212(b) permits a court to search the record and grant summary judgment on a claim even when the prevailing party did not cross-move on that claim.

Allington v. Templeton Found. · filed 2018-12-21(b)

Nonetheless, Pulver cross-moved for summary judgment dismissing the cause of action for contractual indemnification in the third-party complaint, and we therefore exercise our authority to search the record and grant summary judgment to Bassett on that third-party cause of action without the necessity of a cross motion in the third-party action ( see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard , 61 NY2d 106, 110-111 [1984]).

Section 3212(b) permits a court to search the record and grant summary judgment to a party that requests it in opposition to another party's motion.

Stephen LLC v. Zazula · filed 2019-04-04(b)

The court properly granted summary judgment to plaintiff upon its request, contained in its opposition to defendant's motion, for a search of the record ( see CPLR 3212[b]; Maggio v 24 W. 57 APF, LLC , 134 AD3d 621, 628 [1st Dept 2015]).

Section 3212(b) does not support searching the record to dismiss a foreclosure complaint when the lender may still recover unpaid installments.

Aurora Loan Servs., LLC v. Tobing · filed 2019-05-15(b)

Under these circumstances, the Supreme Court should not have searched the record and awarded summary judgment in favor of the defendant dismissing the complaint ( see CPLR 3212[b]; see generally Goetz v Trinidad , 168 AD3d 688).

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

Hurtado v. HSBC Mtge. Servs., Inc. · filed 2019-07-03(b)

Accordingly, we agree with the Supreme Court's grant of that branch of U.S. Bank's motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the court's determination to search the record and grant summary judgment dismissing the complaint insofar as asserted against HSBC ( see CPLR 3212[b]; Pom Chun Kim v Franco , 137 AD3d 991, 992; Mohamed v Blackowl , 116 AD3d 678, 679).

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

Plotkin v. Republic-Franklin Ins. Co. · filed 2019-11-13(b)

Furthermore, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to issues that were the subject of the motion before the Supreme Court ( see CPLR 3212[b]; Kweku v Thomas, 144 AD3d 1109, 1111-1112).

CPLR 3212(b) permits a court to search the record on a summary judgment motion and dismiss a claim even when the moving party did not cross-appeal.

Gordon v. Hernandez · filed 2020-03-03(b)

Although defendants did not cross-appeal from the denial of that portion of their motion seeking dismissal of plaintiff's 90/180-day claim, we find that, upon a search of the record, [*2]pursuant to CPLR 3212(b), dismissal of that claim is warranted ( see Santiago v Bhuiyan , 71 AD3d 485, 486 [1st Dept 2010]).

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

Martinez v. 281 Broadway Holdings, LLC · filed 2020-05-13(b)

Moreover, for the same reasons, the court should have denied the plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 241(6) cause of action insofar as asserted against 281 Broadway and Pavarini ( see Mixon v TBV, Inc. , 76 AD3d 144, 156 n 2), and, upon searching the record, we award summary judgment to 281 Broadway and Pavarini dismissing the Labor Law § 241(6) cause of action insofar as asserted against them ( see CPLR 3212[b]; see e.g. Parker v 205-209 E. 57th St. Assoc., LLC , 100 AD3d 607, 608-609; Parrales v Wonder Works Constr. Corp. , 55 AD3d 579, 582; Anarumo v Slattery Assoc. , 298 AD2d 339, 340).

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

Zhigue v. Lexington Landmark Props., LLC · filed 2020-05-20(b)

While it is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court ( see CPLR 3212[b]; Dunham v Hilco Constr. Co. , 89 NY2d 425, 429), here, the court, in effect, searched the record and awarded summary judgment to the movant with respect to an issue that was not the subject of the motion before the court.

Section 3212(b) permits dismissal of an entire complaint after the court searches the record, even when some defendants have not appeared, if the plaintiff had notice of the issue and an opportunity to oppose dismissal.

Beneficial Homeowner Serv. Corp. v. Heirs at Large of Ramona E. Thwaits · filed 2020-07-02(b)

Finally, although the named defendants did not appear in the action, we discern no error in Supreme Court's dismissal of the complaint in its entirety, given that the mortgaged property may be an estate asset that is potentially subject to distribution among decedent's successors in interest ( see CPLR 3212 [b]). Additionally, plaintiff had notice of the statute of limitations issue and a full opportunity to oppose its application ( compare Lanoce v Anderson, Banks, Curran & Donoghue , 259 AD2d 965, 965 [1999]).

CPLR 3212 (b) permits summary judgment for a nonmoving party, including one that did not appeal, but does not permit it for a moving party that failed to appeal the denial of its motion.

Champlain Gas & Oil, LLC v. People of the State of New York · filed 2020-07-09(b)

The statutory language does not authorize us to grant summary judgment to a moving party that has failed to appeal from the order denying its motion.

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

DeBorba v. City of Rye · filed 2020-07-22(b)

Moreover, under the circumstances of this case, we also agree with the court's determination to search the record and award SMC summary judgment dismissing the amended complaint insofar as asserted against it ( see CPLR 3212[b]; Dunham v Hilco Constr. Co. , 89 NY2d 425, 430; Greene v Rachlin , 154 AD3d 814, 817; Pope v Safety & Quality Plus, Inc. , 74 AD3d 1040, 1041-1042).

CPLR 3212(b) permits a court to search the record on a summary judgment motion and award judgment to a party who did not move for it when the evidence establishes that party's entitlement.

Lojano v. Soiefer Bros. Realty Corp. · filed 2020-10-28(b)

Further, because the evidence established that the plaintiff was not afforded the proper protection for the work being performed, and that this failure was a proximate cause of his injuries, the Supreme Court did not improvidently exercise its discretion in searching the record on ASIF's motion and awarding summary judgment [*3]to the plaintiff on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) ( see CPLR 3212[b]; Carrion v City of New York , 111 AD3d 872, 873; Guaman v New Sprout Presbyt. Church of N.Y. , 33 AD3d 758, 759; Cabrera v Board of Educ. of City of N.Y. , 33 AD3d 641, 642; Graziano v 118-17 Liberty Ave. Mgt. Corp. , 209 AD2d 582, 582-583).

Section 3212(b) permits a court to strike an affirmative defense in the course of summary judgment proceedings even when the opposing party did not move to dismiss it, if the procedural posture warrants that relief.

Certain Underwriters at Lloyd's London v. Bioenergy Dev. Group, LLC · filed 2020-12-17(b)

Contrary to plaintiffs' contention, although defendants did not move to dismiss the affirmative defense of material misrepresentation, the court correctly struck the defense, given the procedural posture of the case ( see CPLR 3212[b]).

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

DeJesus v. Sweet Constr. Corp. · filed 2021-03-04(b)

In view of the foregoing, we grant summary judgment to CCC dismissing the contractual indemnification claim (CPLR 3212[b]).

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

Gibbons v. Alicart Rest. Group · filed 2021-04-08(b)

The court granted Excellent's motion to dismiss and stated that pursuant to a search of the record, it was also dismissing the complaint pursuant to CPLR 3212(b) as to defendant Carmine's. We find that the court erred in dismissing the complaint as against defendant Carmine's based upon defendant Excellent's motion.

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

BSI, LLC v. Raimo · filed 2021-06-02(b)

Although the defendants did not move for summary judgment, "[t]he Supreme Court has the authority, pursuant to CPLR 3212(b), to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion" ( Fair Chase Holdings II, LLC v County of Dutchess , 165 AD3d 1237, 1238; see Murray v Murray , 28 AD3d 624, 625). Under the circumstances presented, the Supreme Court properly searched the record and awarded summary judgment to the defendants dismissing the complaint.

Section 3212(b) permits a court to search the summary judgment record and dismiss an affirmative defense on its own initiative.

Gottwald v. Sebert · filed 2021-04-22(b)

Supreme Court correctly dismissed Kesha's affirmative defense to the breach of contract claim, upon a search of the record (CPLR 3212[b]). ... Therefore, Supreme Court properly dismissed Kesha's affirmative defense sua sponte because plaintiffs were under no obligation to renegotiate any of the agreements they had with her.

Section 3212(b) does not warrant summary judgment upon a search of the record when a material fact is disputed and the record is undeveloped.

Shyer v. Shyer · filed 2021-06-01(b)

However, because decedent's capacity to assent to the modification is disputed and the record is undeveloped on this point, it would be inappropriate to grant Zyloware's request to award it summary judgment upon a search of the record ( see CPLR 3212[b]).

Section 3212(b) permits a court to search the record and grant summary judgment on an issue raised by a motion, even when the party receiving judgment did not assert that ground.

Schwartz v. Ramapo · filed 2021-08-25(b)

The Supreme Court also properly, in effect, searched the record and awarded summary judgment to Oval and Gulla on the ground of assumption of risk although that ground was not asserted by them in their motion papers. "[I]t is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court" ( Zhigue v Lexington Landmark Props., LLC , 183 AD3d 854, 856; see CPLR 3212[b]; Fair Chase Holdings II, LLC v County of Dutchess , 165 AD3d 1237, 1238).

Section 3212(b) permits an appellate court to search the record and award summary judgment to a nonmoving party on an issue raised by the motions below, even without that party's cross appeal.

Gutnick v. Hebrew Free Burial Socy. for the Poor of the City of Brooklyn · filed 2021-10-20(b)

Although this Court has the authority to search the record and award summary judgment in favor of a nonmoving party even in the absence of a cross appeal by that party with respect to an issue that was the subject of the motions before the Supreme Court ( see CPLR 3212[b]; Dunham v Hilco Const. Co., Inc. , 89 NY2d 425, 429-430; Mack v Brown , 82 AD3d 133, 142; Goldstein v County of Suffolk , 300 AD2d 441, 442), we decline to do so here because there are triable issues of fact with respect to each of the appellants' potential liability to the plaintiff ( see Turner v Owens Funeral Home, Inc. , 189 AD3d at 913; Zhuangzi Li v New York Hosp. Med. Ctr. of Queens , 147 AD3d at 1117).

Section 3212 permits a court to consider an unpleaded defense on summary judgment when the essential facts are undisputed and the parties have had an adequate opportunity to brief and argue the issue.

Pantel v. Becker · filed 1977-01-14

While, as a general matter, summary judgment may not be had upon an unpleaded defense (Furlo v Cheek, 20 AD2d 939, 940), where, as here, the essential facts are undisputed and all parties have had an adequate opportunity to brief and argue the legal issue involved, the court should consider the applicability of the last cited statute upon this motion, even though such was not specifically pleaded (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212, C3212:10, C3212:ll).

Section 3212 permits summary judgment based on an unpleaded defense when the opposing party knew the relevant facts and suffers no surprise or prejudice.

Herbert F. Darling, Inc. v. City of Niagara Falls · filed 1979-04-06

However, courts have ordered summary judgment in circumstances in which the reliance upon the unpleaded defense, whether it be an affirmative defense or merely new matter, did not cause surprise or prejudice because the plaintiff was already aware of the facts which constituted the defense ... It is apparent from a reading of plaintiffs complaint in this case that plaintiff knew of the city’s release of International and it cannot claim to be prejudiced or surprised by the claim of release in the motion papers. Special Term should have granted defendant summary judgment since the motion papers do not raise any factual basis upon which plaintiff may recover against International.

Section 3212 permits summary judgment based on a CPLR 3211 defense preserved in the answer.

Pace v. Perk · filed 1981-07-06

Perk therefore properly asserted the defense of the Statute of Frauds and it could form the basis of a motion for summary judgment under CPLR 3212 upon a ground stated in CPLR 3211 (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C3212:20, p 439).

Section 3212 permits summary judgment on an unpleaded defense when relying on that defense does not surprise or prejudice the opposing party.

Olean Urban Renewal Agency v. Herman · filed 1984-04-12(b)

Although a defendant is generally required to plead an affirmative defense (CPLR 3018, subd [b]), and leave to amend a pleading should be freely given (CPLR 3025, subd [b]), a court may grant summary judgment based upon an unpleaded defense where reliance upon that defense neither surprises nor prejudices the plaintiff (see Herbert F. Darling, Inc. v City of Niagara Falls, 69 AD2d 989, 990; see, also, Esa v New York Prop. Ins. Underwriting Assn., 89 AD2d 865; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:10, C3212:ll).

CPLR 3212 allows an unpleaded affirmative defense to support a summary judgment motion if the opposing party suffers no surprise or prejudice.

Simoneschi v. Dedicated Leasing Service LLC · filed 2004-03-02

As an initial matter, the court rejects the plaintiff's contention that the defendants' motion should be denied as it is based on an unpleaded affirmative defense contained in § 5102 (d) and § 5104 of the Insurance Law. Use of an unpleaded defense in a summary judgment motion is not prohibited as long as the opposing party is not taken by surprise and does not suffer prejudice thereby ( see Rosario v City of New York, 261 AD2d 380, 380; Lynbrook Glass & Architectural Metals Corp. v Elite Assocs., 225 AD2d 525, 527; Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3212:11, at 319).

A postanswer motion to dismiss based on grounds raised in the answer is treated as a CPLR 3212 motion for summary judgment.

Matter of Andrews v. State of New York · filed 2016-04-14

Although respondents couched this motion as a motion to dismiss under CPLR 3211 (a) (2), (5) and (7), the motion was made postanswer; hence, it was a CPLR 3212 motion for summary judgment that was based upon the CPLR 3211 (a) grounds asserted in respondents' answer (see Chenango Contr., Inc. v Hughes Assoc., 128 AD3d 1150, 1151 [2015]; Murray Bresky Consultants, Ltd v New York Compensation Manager's Inc., 106 AD3d 1255, 1257 n [2013]).

A postanswer motion to decide an affirmative defense should be made under CPLR 3212; labeling it as a CPLR 3211 motion is harmless if it causes no prejudice.

Hertz Corp. v. Luken · filed 1987-01-15

It is true that Luken’s notice of motion for an order dismissing the action on the ground of another action pending was mislabeled as one made pursuant to CPLR 3211, when it should have been labeled as made pursuant to CPLR 3212 (McLearn v Cowen & Co., 60 NY2d 686), but this was a mistake or defect that caused Hertz no prejudice, and was therefore to be disregarded (see, O’Hara v Del Bello, 47 NY2d 363, 368).

A motion made under CPLR 3212 may be treated as one for summary judgment on appeal without prejudice when the opposing party recognized it as such and responded with factual evidence.

MW Zack Metal Co. v. INT'L NAVIGATION CORP. OF MONROVIA · filed 1986-04-01

We add that there was no prejudice to plaintiff in the Appellate Division’s having dealt with the motions as ones for summary judgment even though Special Term’s consideration of them was only as motions to dismiss for failure to state a cause of action. Defendants’ motion and cross motion were stated to have been made pursuant to CPLR 3212.

CPLR 3212 permits denial of summary judgment when the opposing party needs discovery of evidence within the moving party’s knowledge.

Long Island College Hospital v. Axelrod · filed 1986-07-03

While it is normally incumbent on the party opposing summary judgment to come forward with evidence in opposition, the rule does not apply to a party who has been unable to obtain the necessary evidence because, as here, such proof is peculiarly within the moving party’s knowledge (see, CPLR 3212; Udoff v Zipf, supra; Piccolo v De Carlo, 90 AD2d 609, 610). Thus, Special Term properly denied defendants’ motion for summary judgment as it pertained to the constitutional challenge because it was premature since plaintiff has not yet had an opportunity to conduct pretrial discovery.

A request for judgment in a motion to dismiss defenses does not, by itself, give adequate notice that summary judgment is sought under CPLR 3212.

Manhattan Life Insurance v. Fernandez · filed 1986-01-09

Plaintiff's prayer for "judgment” in its favor in connection with a CPLR 3211 motion to dismiss defenses, without more, did not constitute adequate notice to the parties that summary judgment was sought under CPLR 3212.

A motion to dismiss made after service of the answer should proceed as a summary judgment motion under CPLR 3212.

Firestone v. Saxton Products, Inc. · filed 1985-09-03

Since the motion was made after service of the answer, it should have been made under CPLR 3212, and the Surrogate should have given notice to the parties pursuant to CPLR 3211 (c) that the motion would be treated as one for summary judgment (Rich v Lefkovits, 56 NY2d 276; Boswell v Jiminy Peak, 94 AD2d 782).

Section 3212 addresses whether factual issues require a trial; when a summary judgment motion raises only the legal sufficiency of the complaint, the court may treat it as a motion to dismiss.

Fusco v. General Motors Corp. · filed 1984-12-13

Although the procedural vehicle by which this matter is before the court is a motion for summary judgment pursuant to CPLR 3212, the question presented is not whether issues of fact exist for trial, but rather whether as a matter of law the complaint states a cause of action. The court will therefore treat it as a motion to dismiss pursuant to CPLR 3211.

Section 3212 does not authorize treating a summary judgment motion as a motion to dismiss under CPLR 3211; a party may move for summary judgment after issue is joined.

Sloame v. Madison Square Garden Center, Inc. · filed 1977-02-15

While a motion pursuant to CPLR 3211 (subds [a] or [b]) could be considered and treated as a motion for summary judgment (as provided by CPLR 3211, subd [c]), there is no corresponding provision in CPLR 3212. Issue having been joined, defendant properly moved for CPLR 3212 relief.

A party may waive the procedural error of converting a motion to dismiss into one for summary judgment by expressly requesting a decision on the merits.

Novak & Co. v. Travelers Indemnity Co. · filed 1977-03-28

Although the action of Special Term in granting summary judgment where the defendant had moved only for dismissal pursuant to CPLR 3211 (subd [a]) would ordinarily require a reversal of the order appealed from under the recent decision of the Court of Appeals in Rovello v Orofino Realty Co. (40 NY2d 633), the appellant, on oral argument, waived this procedural error and expressly asked that we reach and determine the decisive substantive issue of whether it may recover as a third-party beneficiary under the performance and payment bonds issued by the defendant.

Section 3212 permits a court to consider an untimely motion to dismiss as a motion for summary judgment.

Continental Information Systems Corp. v. Mutual Life Insurance · filed 1980-11-13

The motion was, therefore, untimely; however, a court may consider the motion as one for summary judgment under CPLR 3212 (see Siegel, New York Practice, § 283, p 339).

A motion brought under CPLR 3212 to strike affirmative defenses for lack of merit may be converted to a CPLR 3211(b) motion.

Anderson v. WROC-TV · filed 1981-07-13

Although the motion is brought under CPLR 3212, it appears that the application is actually one to dismiss defenses under CPLR 3211 (subd [b]) and the motion is converted accordingly.

After issue is joined, a motion to dismiss on grounds listed in CPLR 3211 is treated as a motion for summary judgment under CPLR 3212.

Connell v. Hayden · filed 1981-10-19(a)

The motion was made after joinder of issue and for that reason it was actually one for summary judgment pursuant to CPLR 3212 on grounds enumerated in CPLR 3211 (subd [a]) (see CPLR 3212, subd [a]; CPLR 3211, subd [e]).

CPLR 3212 requires joinder of issue before summary judgment, but a court may decide a prompt sublease dispute summarily when all parties are before it and have stated their positions.

Kazarinov v. L. B. Kaye Associates · filed 1981-12-16

What, however, of the requirement of CPLR 3212 that a motion for summary judgment may only be granted after joinder of issue? The answer is that in these sublease cases where a prompt determination is necessary and all the parties are before the court and have stated their positions, certain technicalities are disregarded.

CPLR 3212 permits a defendant to move for summary judgment on a pleaded personal-jurisdiction defense after answering.

Rich v. Lefkovits · filed 1982-06-10(a)

Requiring that a motion addressed to lack of personal jurisdiction made after answer pleading that lack as an affirmative defense be made by motion specifying that it is made under CPLR 3212 or, if made under 3211, that the parties be given notice that the court will consider it as a 3212 motion reduces the possibility of gamesmanship, while at the same time permitting the court to deal with the issue in the most efficient manner by directing immediate trial of any factual issues underlying the jurisdictional question.

CPLR 3212 does not permit a court to treat a CPLR 3213 motion as an ordinary summary judgment motion before a complaint has been served and an answer interposed.

Steinard v. Steinard · filed 1995-11-22

As a starting point, Supreme Court plainly erred in treating plaintiffs motion as one for summary judgment pursuant to CPLR 3212. No complaint had been served and no answer had been interposed; hence, it was inappropriate to convert plaintiff’s motion for relief under CPLR 3213 to one for summary judgment under CPLR 3212 (see generally, Farca v Farca, 216 AD2d 520, 521-522; compare, Big K Kosher Dairy Rest, v Gross, 198 AD2d 205, 206).

A court may, after adequate notice, treat a motion to dismiss as one for summary judgment, but need not do so.

Siddiqui v. Nationwide Mutual Insurance · filed 1999-04-01(e)

It is well settled that the court, after adequate notice to the parties, may choose to treat a motion to dismiss as one for summary judgment (see, CPLR 3212 [e]), although it is not required to do so (see, SPI Communications v WTZA-TV Assocs. Ltd. Partnership, 229 AD2d 644, 645). We find no abuse of Supreme Court’s considerable discretion in declining to treat the motion as one for summary judgment, especially in light of the fact that Nationwide specifically denoted the motion as one to dismiss, neither party indicated that they sought summary judgment, and the parties’ supporting affidavits did not manifest an intent to chart a summary judgment course.

A court may not convert a CPLR 3212 motion into a CPLR 3211 dismissal motion without giving the movant notice and an opportunity to contest the conversion.

Cavallaro v. Pozzi · filed 2006-04-28

Despite noting that defendant’s motion had been brought pursuant to CPLR 3212, Supreme Court sua sponte treated the motion as one to dismiss under CPLR 3211 (a) (7) and denied it. We agree with defendant that the court erred in “converting” the motion into a CPLR 3211 motion without affording him notice of the nature of the motion and without affording him the opportunity to contest the conversion of that motion (see 7 W. Foods v Forty-Seventh Fifth Co., 109 AD2d 658 [1985]; cf. Lanzisera v Miller, 289 AD2d 1015, 1016 [2001]; Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782 [2000]).

Section 3212 permits the court to treat both parties’ motions as summary judgment motions when they lay bare their proof and present only legal issues.

Leading Insurance Group Insurance v. Greenwich Insurance · filed 2014-04-17

Plaintiffs Leading Insurance and S.M.M.B. Realty cross-move for an order, pursuant to CPLR 3212, granting them summary judgment on their complaint, also relying on the Greenwich policy and the lease. The court is treating both motions as motions for summary judgment. The parties rely primarily on the documents and legal argument; an affidavit of Francine Feimster, submitted by plaintiffs, adds nothing material.

CPLR 3212 governs a motion to dismiss made after issue has been joined when the motion is treated as one for summary judgment.

JP Morgan Chase Bank, N.A. v. Johnson · filed 2015-06-17

Since the Johnsons’ motion was made after issue was joined, the Supreme Court correctly determined that it should be treated as a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 NY2d 276, 278 [1982]; Wesolowski v St. Francis Hosp., 108 AD3d 525, 526 [2013]; Piro v Macura, 92 AD3d 658, 660 [2012]; Tufail v Hionas, 156 AD2d 670, 671 [1989]).

Section 3212 permits a summary judgment motion after denial of a motion to dismiss for failure to state a cause of action.

Donrojill Realty Corp. v. Aetna Casualty & Surety Co. · filed 1977-06-06

The denial of defendant Designers Fore, Ltd.’s, prior motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211, subd [a], par 7) does not bar a motion for summary judgment (see CPLR 3212; Dietrich, Inc. v Brentwood Tel. Corp., 56 AD2d 753).

A court may not convert a motion to dismiss into a summary judgment motion by considering an affidavit without giving the opposing party an opportunity to reply.

Metropolitan Transportation Authority v. Regency-Lexington Partners · filed 1982-08-05

No opportunity was given to counsel for plaintiffs-appellants to reply. The effect of this was impermissibly to convert a motion under CPLR 3211 (subd [a], pars 5, 7) into a motion for summary judgment under CPLR 3212.

A denied motion to dismiss for failure to state a cause of action does not bar a later summary judgment motion under CPLR 3212.

Scott v. Transkrit Corp. · filed 1982-12-27

Moreover, the denial of defendant’s prior motion to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd [a], par 7), did not bar its subsequent motion for summary judgment (CPLR 3212; see Fink v Horn Constr. Co., 58 AD2d 574).

CPLR 3212 summary judgment examines the underlying evidence, and denial of an earlier motion to dismiss for failure to state a claim does not bar a later summary judgment motion.

Tenzer, Greenblatt, Fallon & Kaplan v. Capri Jewelry, Inc. · filed 1987-03-26

The law of the case doctrine is, however, inapplicable herein, as a motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action, which addresses merely the sufficiency of the pleadings, is distinct from a motion for summary judgment pursuant to CPLR 3212, which searches the record and looks to the sufficiency of the underlying evidence.

A denial of a motion to dismiss for failure to state a cause of action does not bar a later motion for summary judgment.

Pappas v. Harrow Stores, Inc. · filed 1988-05-16

Contrary to the assertion made by the plaintiff before the Supreme Court and at oral argument on appeal, denial of Harrow’s motion to dismiss the complaint for failure to state a cause of action did not bar its subsequent motion for summary judgment (see, Scott v Transkrit Corp., 91 AD2d 682).

Section 3212 permits a court to treat a motion to dismiss as a summary judgment motion when issue has been joined and no factual issues preclude determination.

Barkus v. Fusco · filed 1991-02-07

Accordingly, issue having been joined and there being no factual issues precluding determination, defendants’ application to dismiss is hereby deemed an application for summary judgment pursuant to CPLR 3212 and is in all respects granted.

A court may treat a motion to dismiss as a summary judgment motion without giving notice when the parties have laid bare their proof and charted a summary judgment course.

Singer v. Boychuk · filed 1993-06-24

Initially, we see no error in Supreme Court’s treatment of the Boychuks’ motion as one for summary judgment. ... While there is no indication on this record that Supreme Court gave the required notice and no contention is advanced that it was given during oral argument, we believe that, viewing the papers in their entirety, it can fairly be said that the parties laid bare their proof, submitting not only extensive documentation but evidentiary affidavits regarding the sum and substance of negotiations leading up to the 1980 assignment, and thus charted the summary judgment course.

A court may treat a pre-answer motion to dismiss as a summary judgment motion without separate notice when the parties deliberately lay bare their proof.

O'Dette v. Guzzardi · filed 1994-05-02

While generally a court’s election to treat a pre-answer CPLR 3211 motion as a motion pursuant to CPLR 3212 requires adequate notice to the parties (see, Rich v Lefkovits, 56 NY2d 276; DeSanctis v Laudeman, 169 AD2d 1026), this rule is inapplicable when it appears from a reading of the parties’ papers that they deliberately are charting a summary judgment course by laying bare their proof (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

A CPLR 3211 motion to dismiss cannot be converted into a CPLR 3212 summary judgment motion in the circumstances addressed here.

Garner v. China Natural Gas, Inc. · filed 2010-03-16

Although the defendants’ motion was made pursuant to CPLR 3211, the Supreme Court, in effect, converted that branch of the motion which was to dismiss the cause of action alleging breach of contract into a motion for summary judgment pursuant to CPLR 3212. This was error (see Mihlovan v Grozavu, 72 NY2d 506 [1988]; Bowes v Healy, 40 AD3d 566 [2007]).

A motion labeled as seeking summary judgment under CPLR 3212 may be treated as a CPLR 3211 motion to dismiss when it challenges jurisdiction rather than the merits or the existence of triable facts.

Yanus v. State · filed 2011-09-27

Initially, I note that defendant’s notice of motion specifies that the instant motion is “for an Order granting the State of New York summary judgment pursuant to CPLR 3212.” The papers supporting the motion, however, do not contest the merits of the claim or assert that there are no triable issues of fact but, rather, assert simply that the court is without jurisdiction to hear the claim due to a defect in the claim. Claimant responds in kind in his responding papers by addressing the alleged defects in the claim and not the underlying merits. As such, the court, sua sponte, now converts the motion to a CPLR 3211 motion to dismiss the claim, and the parties’ respective contentions will be addressed and analyzed within that framework.

A prior ruling sustaining a claim on a motion to dismiss does not bind the court on a later summary judgment motion.

Supreme Associates, LLC v. Suozzi · filed 2011-10-21

Lastly, while the Appellate Division previously sustained the plaintiffs’ equal protection theory in response to the County’s original CPLR 3211 (a) (7) motion, that holding is not binding with respect to a subsequently noticed application for summary judgment (see generally Thompson v Lamprecht Transp., 39 AD3d 846 [2007]; Mobarak v Mowad, 55 AD3d 693 [2008]).

A motion to dismiss that was not converted to summary judgment under CPLR 3212(c) does not give its ruling preclusive effect on a later summary judgment motion.

Rosen v. Mosby · filed 2017-03-02(c)

Nor does the doctrine apply where, as here, a motion for summary judgment follows a motion to dismiss that was not converted to a motion for summary judgment pursuant to CPLR 3212 (c) (see Moses v Savedoff, 96 AD3d 466, 468 [2012]; 191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [2011]).

A prior appellate ruling reinstating a claim after a motion to dismiss does not preclude a later motion for summary judgment under CPLR 3212.

Harris v. Barbera · filed 2018-07-05

Initially, contrary to the plaintiff's contention, this Court's order on the prior appeal with respect to the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint does not preclude the present motion pursuant to CPLR 3212 for summary judgment dismissing the complaint ( see Bernard v Grenci, 48 AD3d 722, 724; see also Beach v Touradji Capital Mgt., LP, 128 AD3d 501, 502).

Section 3212 permits an award of contractual attorneys’ fees on summary judgment when their percentage and dollar amount establish their reasonableness without a hearing.

National Bank of Westchester v. Pisani · filed 1977-06-13

Both the percentage and the dollar amount of the attorneys’ fees indicate that such fees were properly granted on the motion for summary judgment. No hearing was required to determine their reasonableness (cf. National Commercial Bank & Trust Co. v Bart Boat Co., 41 AD2d 159).

Section 3212 permits summary judgment on a statute of limitations defense raised in an answer when the facts are undisputed and the issue is legal.

Lascaris v. Price · filed 1978-04-24

If the defense is raised in the answer, dismissal may be by summary judgment pursuant to CPLR 3212. ... Since the present motion bears some resemblance to both a preanswer motion to dismiss and a postanswer motion for summary judgment, it is instructive to note that the CPLR allows a summary dismissal in either situation where the issue is a legal one and the facts are not in dispute. Accordingly, the court finds that it is proper to resolve this matter by way of motion rather than to await the proof of facts at trial that are not in dispute.

Section 3212(a) permits a summary judgment motion based on a statute of limitations defense after issue has been joined.

Seven Sixty Travel, Inc. v. American Motorists Insurance · filed 1979-02-20(a)

This argument is without merit. Although the usual summary judgment motion is based on the over-all merits of the case, and not an individual defense such as the Statute of Limitations, nevertheless, it may serve as the proper basis for the motion "at any time 'after issue has been joined’. (CPLR 3212, subd [a].)”

CPLR 3212 permits a defendant to assert a statute of limitations defense by summary judgment motion after joinder of issue.

Meredith v. Siben & Siben, LLP · filed 2015-07-15

Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 NY2d at 282).

CPLR 3212 permits a defendant to raise a statute of limitations defense on summary judgment after joinder of issue.

Healthy Way Acupuncture, P.C. v. City of NY Off. of Comptroller · filed 2018-06-18

Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212 ( see Rich v Lefkovits, 56 NY2d at 282).

Section 3212(c) allows a court to entertain a cross motion to dismiss made in response to a summary judgment motion and treat it as a motion for summary judgment.

Barol v. Barol · filed 1983-06-16(c)

In this procedural context, the court was fully authorized to entertain defendant’s cross motion for dismissal (CPLR 3212, subd [c]), which the court could have appropriately treated as one for summary judgment (see Rich v Lefkovits, 56 NY2d 276).

A court may entertain a CPLR 3212 cross motion filed after an agreed motion deadline when resolving the case on its merits outweighs the delay.

Allegro Oil & Gas, Inc. v. McGranahan · filed 1990-06-15

Balancing the need to move cases along expeditiously against the policy of resolving lawsuits on their merits, the court concludes, in the instant case, that the latter consideration should prevail. Therefore, the court will entertain the untimely cross motion of the plaintiff, albeit reluctantly.

CPLR 3212(a) permits an untimely summary judgment cross motion to be considered with a timely, pending motion to which it responds.

James v. Jamie Towers Housing Co. · filed 2002-05-28(a)

Although Jamie Towers’ cross motion was served more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]), the motion court should have considered the cross motion on its merits along with the timely and still-pending motion by Lance to which it responded (see, Rosa v R.H. Macy Co., 272 AD2d 87).

Section 3212(a) permits a late cross motion on the same issues as a timely summary judgment motion, but requires good cause for a late cross motion raising different issues.

Ferris v. Millman · filed 2007-09-07(a)

Herein, that branch of defendants’ cross motion seeking to dismiss plaintiffs claim of false imprisonment is properly before the court, since it raises the same issues that had to be addressed in disposing of plaintiffs timely motion for summary judgment. ... From this it follows that since defendants failed to make any showing of good cause for the delay as is required pursuant to Brill v City of New York (2 NY3d 648 [2004]), their cross motion must be denied as untimely (see e.g. Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 496-497 [2005]).

CPLR 3212(a) permits denial of an untimely cross motion for summary judgment.

In re Heino · filed 2010-05-18(a)

Furthermore, the Surrogate providently exercised her discretion in denying the appellant’s untimely cross motion for summary judgment in his favor on certain of his objections (see CPLR 3212 [a]).

Section 3212(a) permits a court to consider an untimely summary judgment cross motion alongside a timely motion made on nearly identical grounds, even without good cause for the delay.

Alexander v. Gordon · filed 2012-05-30(a)

Furthermore, the plaintiffs failed to establish “good cause” for their delay in making the cross motion (CPLR 3212 [a]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). However, a court may entertain an untimely cross motion for summary judgment if the court is deciding a timely motion for summary judgment made on nearly identical grounds (see Grande v Peteroy, 39 AD3d 590, 591-592 [2007]).

Section 3212(a) allows a court to reach the merits of an untimely cross motion for summary judgment to the extent it raises the same issues as the original motion.

Palomo v. 175th Street Realty Corp. · filed 2012-12-20(a)

The merits of the untimely cross motion for summary judgment were properly reached to the extent that it is based on the same issues raised by the motion (CPLR 3212 [a]; see Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]).

Section 3212(b) permits a court to search the record and consider a late cross motion that raises issues and proof already presented in timely summary judgment motions.

Tornabene v. City of New York · filed 2013-06-27(b)

Nevertheless, the joint venture defendants’ belated joint cross motion, served on May 22, 2012, may be considered to the extent that it involves the identical (or nearly identical) issues and proof already properly before the court in the timely motions of plaintiff and Roadway Contracting as the court may address these issues through its power to search the record under CPLR 3212 (b) (see McCallister v 200 Park, L.P., 92 AD3d 927, 928 [2d Dept 2012]).

Section 3212(a) allows a court to consider an untimely summary judgment cross motion when a timely motion raises nearly identical grounds.

Paredes v. 1668 Realty Associates · filed 2013-10-02(a)

The cross motion and amended cross motion made by 1668 Realty were untimely (see CPLR 3212 [a]; Kings County Supreme Court Uniform Civil Term Rules, part C, rule 6; Polanco v Creston Ave. Props., Inc., 84 AD3d 1337, 1341 [2011]), and it failed to show “good cause” for the delay (CPLR 3212 [a]; see Giuliano v 666 Old Country Rd., LLC, 100 AD3d 960, 962 [2012]; Powers v Sculco, 89 AD3d 1075, 1075 [2011]). A court may, however, entertain an untimely cross motion for summary judgment if the court is deciding a timely motion for summary judgment made on nearly identical grounds (see Alexander v Gordon, 95 AD3d 1245, 1247 [2012]).

CPLR 3212(a) permits a court to consider an untimely summary judgment cross motion when a timely motion raises nearly identical grounds, providing good cause to review it.

Wernicki v. Knipper · filed 2014-07-16(a)

While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely (see Brill v City of New York, 2 NY3d 648 [2004]), an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds (see Homeland Ins. Co. of N.Y. v National Grange Mut. Ins. Co., 84 AD3d 737, 738-739 [2011]; Whitehead v City of New York, 79 AD3d 858, 860 [2010]; Grande v Peteroy, 39 AD3d 590, 591-592 [2007]).

An untimely summary judgment cross motion may be considered on issues raised by a timely motion, but other issues require good cause for the delay.

Jarama v. 902 Liberty Ave. Hous. Dev. Fund Corp. · filed 2018-05-31(a)

This Court may consider the merits of defendants' untimely cross motion for summary judgment dismissing the complaint to the extent it sought dismissal of the Labor Law § 240(1) claim, because it is based on the same issues raised in plaintiff's motion ( Palomo v 175th St. Realty Corp. , 101 AD3d 579, 581 [1st Dept 2012]). However, the remainder of the motion, seeking dismissal of Labor Law § 241(6), Labor Law § 200 and common law negligence claims cannot be considered because it does not address issues nearly identical to those raised in the timely motion and defendants did not demonstrate good cause for the delay ( see Vitale v Astoria Energy II, LLC , 138 AD3d 981, 984 [2d Dept 2016]; Filannino v Triborough Bridge & Tunnel Auth. , 34 AD3d 280 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]; CPLR 3212[a]).

An untimely cross motion for summary judgment does not necessarily bar the movant from obtaining relief.

FJ Vulis, LLC v. Val · filed 2018-11-15(b)

Plaintiff's contention that defendants' untimely cross motion for summary judgment precluded them from seeking any relief is without merit ( see CPLR 3212[b]; see also e.g. Carnegie Hall Corp. v City Univ. of N.Y. , 286 AD2d 214, 215 [1st Dept 2001]).

Section 3212(a) permits consideration of an untimely summary judgment cross motion when it addresses the same basic issues as a timely motion.

Baez v. 1749 Grand Concourse LLC · filed 2019-12-12(a)

Plaintiff's motion was properly considered although it was untimely, because it addressed the same basic issues as the Building Defendants' timely filed motion, i.e., the liability of the Building Defendants to plaintiff for negligence ( see CPLR 3212[a]; Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp. , 161 AD3d 691, 691-692 [1st Dept 2018]).

An immediate trial on damages after summary judgment on liability does not deprive the defendant of discovery on damages.

Barr v. Raffe · filed 1983-08-18(c)

The fact that the issue of liability had conclusively been determined adversely to defendant and an “immediate trial” ordered on the issue of damages, should not and does not deprive him of his right to discovery on that issue.

Section 3212(b) does not support dismissing an affirmative defense when the court cannot say it lacks merit as a matter of law.

Venditti v. American Druggists Insurance · filed 1985-02-19(b)

It cannot be said that either of the affirmative defenses has no merit as a matter of law (see, CPLR 3212 [b]; Siegel, NY Prac § 269).

Section 3212(b) allows a court to dismiss a meritless defense when denying a summary judgment motion.

Tufail v. Hionas · filed 1989-12-26(b)

In addition to denying the defendant’s motion, the Supreme Court should have dismissed the meritless defense underlying it (see, CPLR 3212 [b]).

A plaintiff seeking partial summary judgment dismissing an affirmative defense must establish as a matter of law that the defense has no merit.

PRO Net, LLC v. ACC TeleCom Corp. · filed 2002-05-03(b)

The filed tariffs are part of the agreement between the parties (see Lauer v New York Tel. Co., 231 AD2d 126, 129), and plaintiff failed to establish as a matter of law that the affirmative defense has no merit (see CPLR 3212 [b]).

Under CPLR 3212, a defendant abandons pleaded affirmative defenses by failing to raise them in opposition to summary judgment.

Federal National Mortgage Ass'n v. Karastamatis · filed 2016-06-29

All of the pleaded affirmative defenses set forth in the answer have thus been waived and abandoned under the case authorities cited directly above.

Under CPLR 3212(b), pleaded affirmative defenses that a defendant does not raise in opposition to summary judgment are waived and abandoned and may be dismissed.

Pennymac, Corp. v. DiPrima · filed 2016-11-18(b)

All other pleaded affirmative defenses were waived and abandoned and are thus dismissed pursuant to CPLR 3212 (b) (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756 [2013], supra).

On a summary judgment motion, affidavits raising a colorable claim of defective service require a traverse hearing to resolve personal jurisdiction.

Jenny Oil Corp. v. Petro Products Distributors, Inc. · filed 1986-06-30

Affidavits submitted by individuals with personal knowledge of the facts raise a colorable claim that service of process might have been defective. Thus, on the motion for summary judgment, Special Term should have held a traverse hearing to determine the merits of this alleged defense, and the matter is remitted to the Supreme Court, Westchester County, to hold such a hearing.

A party’s mere assertion that contract language is ambiguous does not raise a triable issue of fact precluding summary judgment.

Lake Construction & Development Corp. v. City of New York · filed 1995-01-19

The mere assertion by a party that contract language is ambiguous is not, in and of itself, enough to raise a triable issue of fact precluding summary judgment (Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460; Olson Enters. v Agway, Inc., 55 NY2d 659, 661).

Summary judgment is proper when the only question is how to interpret a written agreement.

Ultra Scope International, Inc. v. Extebank · filed 1992-07-09

Summary judgment is proper where the only question is the interpretation of a written agreement (Long Is. R. R. Co. v Northville Indus. Corp., 41 NY2d 455 [1977]; Kuehne & Nagel v Baiden, 36 NY2d 539 [1975]).

Section 3212 permits summary judgment on a contract claim when the agreement resolves the parties’ intent and no triable issue of fact remains.

Pharmaceutical Horizons, Inc. v. Sterling Drug, Inc. · filed 1987-02-19

Finally, when, as here, the court can determine the parties’ intent by looking at the agreement, the issue is one of law and should be decided by summary judgment.

Under CPLR 3212, evidentiary submissions can establish a claim despite a deficient complaint, and factual disputes about that claim can preclude summary judgment.

Canonico v. Hayes · filed 1987-02-19

However, this is a motion for summary judgment under CPLR 3212, not a motion to dismiss under CPLR 3211 (a) (7), and accordingly is treated differently. ... The elements of malicious prosecution having been set forth in the submissions on the summary judgment motion, and there being issues of fact with regard to two of these elements, summary judgment in favor of Rydinsky is inappropriate at this juncture.

A CPLR 3212 motion for summary judgment assumes a complete evidentiary record and seeks to determine whether any material issue of fact requires trial.

Nonnon v. City of New York · filed 2007-06-27

While affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). By contrast, a motion for summary judgment, which seeks a determination that there are no material issues of fact for trial, assumes a complete evidentiary record.

Section 3212 permits summary judgment in a civil contempt proceeding when no triable issue of material fact remains.

Department of Housing Preservation & Development v. Gottlieb · filed 1987-07-23(b)

This court finds that factual questions presented on a civil contempt application may be resolved summarily either by summary judgment motion or by application of CPLR 409 and 410.

CPLR 3212(b) requires a summary judgment movant to submit the opposing party’s answer; a motion denied for omitting it may be renewed after the defect is corrected.

S & D Petroleum Co. v. Tamsett · filed 1988-11-17(b)

Plaintiff moved for partial summary judgment on the issue of defendant’s liability, but the motion was denied because plaintiff had failed to submit a copy of defendant’s answer as required by CPLR 3212 (b). ... Given that denial of the motion originally was because of a ... procedural defect and not on the merits, Supreme Court’s determination to grant renewal upon correction of the defect was not an abuse of discretion (see, Riggs v Pursell, 74 NY 370, 379).

A summary judgment motion may be denied without prejudice to renewal after discovery is complete.

Poissant v. Arbouin · filed 2003-12-15(a)

Contrary to the contention of the moving defendants, under the circumstances of this case, the Supreme Court properly denied their motion for summary judgment without prejudice to renew upon completion of discovery (see CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92 [1985]; Barletta v Lewis, 237 AD2d 238 [1997]).

A summary judgment motion addressed to the entire complaint gives notice that all causes of action may be dismissed, even if the supporting papers do not discuss each one.

Carnemella v. Sadowy · filed 1989-02-23

Finally, we consider plaintiffs’ contention that the third and fourth causes of action in the complaint against Sadowy should not have been dismissed because Sadowy’s papers in support of his summary judgment motion made no mention of these causes of action. As a result, plaintiffs claim that they had no notice that Supreme Court would be considering the complaint as a whole. We disagree. Here, Sadowy’s notice of motion specifically stated that it was addressed to the entire complaint.

A party has adequate notice of a summary judgment motion under CPLR 3212 when the moving papers cite the section and the parties treat the motion accordingly.

Hudson Engineering Associates v. Kramer · filed 1994-05-02

There is no merit to the owner’s claim that he was given inadequate notice that the engineer’s motion was one for summary judgment under CPLR 3212, since the moving papers clearly indicated that the motion was made pursuant to both CPLR 3211 and 3212, and the record indicates that the parties treated the motion accordingly.

A summary judgment motion that sufficiently identifies a request to dismiss the entire complaint permits the court to address each cause of action without giving further notice.

Teitler v. Teitler · filed 1998-03-09

Therefore, the Supreme Court was not required to provide notice to the appellant that it would address each cause of action in order (cf, Rich v Lefkovits, 56 NY2d 276).

An express request for summary judgment in the alternative gives the opposing party adequate notice that the court may treat a motion to dismiss as one for summary judgment.

SMITHERS, RANDY v. COUNTY OF ONEIDA · filed 2016-04-29

We reject plaintiff’s contention that the court was required to give the parties notice that it was treating the motion as one for summary judgment. “[A] court may treat a motion to dismiss as a motion for summary judgment when the parties have otherwise received adequate notice by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course” (Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782 [internal quotation marks omitted]; see generally Mihlovan v Grozavu, 72 NY2d 506, 508). Here, plaintiff was on notice that defendant was seeking summary judgment in the alternative and, indeed, opposed that part of the motion.

CPLR 3212(b) permits a court to grant summary judgment for a reason different from the one the movant advanced.

Goldfarb v. Teitelbaum · filed 1989-04-17(b)

Wé agree that the remaining causes of action should have been dismissed, but for different reasons (see, CPLR 3212 [b]).

Section 3212 does not permit summary judgment on a ground the moving party did not rely on.

Jackson v. Valvo · filed 1992-01-31

As an initial matter, Supreme Court’s determination that the 1973 right of first refusal was enforceable was in error as plaintiffs did not rely on the 1973 right of first refusal; therefore, the court should not have based its judgment on that ground (see generally, CPLR 3212; de Saint Phalle v de Saint Phalle, 92 AD2d 792).

CPLR 3212(b) does not permit summary judgment on a ground the movant did not raise when the opponent had no notice or opportunity to respond.

Lanoce v. Anderson, Banks, Curran & Donoghue · filed 1999-03-19(b)

Because Anderson did not seek summary judgment on that ground, plaintiffs had no notice of it and thus no opportunity for opposition (see, CPLR 3212 [b]; Conroy v Swartout, 135 AD2d 945; cf., Lee v City of Rochester, 254 AD2d 790).

Section 3212(b) permits dismissal on summary judgment when the record shows that the complaint fails to state a cause of action, even if the record does not reveal the basis of the cross motion.

Schultz v. 400 Cooperative Corp. · filed 2002-01-08(b)

While the record does not reflect the basis of defendant’s cross motion for summary judgment, this Court’s review of the record compels the conclusion that dismissal of the complaint is warranted on the ground that it fails to state a cause of action (CPLR 3211 [a] [7]; 3212 [b]; Grimaldi v Pagan, 135 AD2d 496; see also, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [summary judgment granted to nonappealing parties]).

Section 3212(b) requires a summary judgment movant to submit the pleadings, but the movant may cure an omission by submitting them with reply papers.

Jones, LLP v. Sitomer · filed 2016-05-11(b)

Contrary to the plaintiff’s contention, the Supreme Court did not err in considering the motion on the merits despite the defendant’s failure to submit a copy of the pleadings with her moving papers as required by CPLR 3212 (b), since the defendant rectified her error by submitting a copy of the pleadings with her reply papers (see Barnaba-Hohm v St. Joseph’s Hosp. Health Ctr., 130 AD3d 1482, 1483 [2015]; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d 611, 612 [2012]; Dale v Gentry, 66 AD3d 1469, 1469 [2009]).

A summary judgment motion must be supported by copies of the pleadings; otherwise, summary judgment should be denied.

Dupuy v. Carrier Corp. · filed 1994-05-27(b)

Where a party fails to comply with the statutory mandate that a summary judgment motion be supported by copies of the pleadings (see, CPLR 3212 [b]), summary judgment should be denied (see, Somers Realty Corp. v Big "V” Props., 149 AD2d 581; Freeman v Easy Glider Roller Rink, 114 AD2d 436).

Section 3212(b) requires a summary judgment movant to include a copy of the pleadings with its motion papers.

Somers Realty Corp. v. Big "V" Properties, Inc. · filed 1989-04-17(b)

The defendant was not entitled to an award of summary judgment, as its papers submitted in support of the motion failed to include a copy of the pleadings as required by statute (see, CPLR 3212 [b]; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338; Freeman v Easy Glider Roller Rink, 114 AD2d 436).

Section 3212(b) requires a party moving for summary judgment to submit the complaint; omitting it makes the motion procedurally defective.

Mathiesen v. Mead · filed 1990-12-06(b)

Finally, plaintiff’s failure to submit the complaint with his cross motion for summary judgment renders the motion procedurally defective (CPLR 3212 [b]); accordingly, it was not error for Supreme Court to deny the cross motion without prejudice.

CPLR 3212(b) requires summary judgment motions to include the pleadings; a court may reach the merits despite their omission when no party raises the defect and the record is sufficiently complete.

General Motors Acceptance Corp. v. Albany Water Board · filed 1992-11-25(b)

We note that inasmuch as neither defendants’ motion nor plaintiffs cross motion for summary judgment was supported by a copy of the pleadings (see, CPLR 3212 [b]), both motions were procedurally defective and could have been dismissed by Supreme Court on that basis (see, Mathiesen v Mead, 168 AD2d 736, 737). None of the parties raise this issue on appeal, however, and because the record before us is sufficiently complete, we will decide these appeals on the merits.

CPLR 3212 (b) requires a summary judgment movant to support the motion with copies of the pleadings.

McMahon v. Wolverine Worldwide, Inc. · filed 1996-11-07(b)

Because the movants did not support their motions with copies of their pleadings, they were not entitled to summary judgment (see, Dupuy v Carrier Corp., 204 AD2d 977; Mathiesen v Mead, 168 AD2d 736, 737; Lawlor v County of Nassau, 166 AD2d 692; Somers Realty Corp. v Big "V” Props., 149 AD2d 581; see also, CPLR 3212 [b]).

Section 3212(b) requires a party moving for summary judgment to provide the necessary pleadings.

Tumminello v. Hamlet Development Co. · filed 1997-08-06(b)

The motion of the Hamlet for summary judgment is denied, with opportunity to renew after completion of discovery. The Hamlet fails to provide the court with a copy of all necessary pleadings pursuant to CPLR 3212 (b).

Section 3212(b)'s pleading requirement is satisfied for a motion to dismiss a complaint when the movant submits the complaint and its own answer; an opponent relying on other answers to show factual issues must submit them.

Bacon v. Arden · filed 1997-11-19(b)

Here, the Town submitted the complaint and its answer in support of that part of the motion for summary judgment dismissing the complaint, thus satisfying CPLR 3212 (b) with respect to that part of the motion. If, as plaintiffs contend, the answers of the other defendants raise issues of fact sufficient to defeat the Town’s motion for summary judgment, it was the obligation of plaintiffs to submit them in opposition.

A motion for summary judgment may be denied when the record lacks the pleading needed to show that the claim was asserted.

Binasco v. Break-Away Demolition Corp. · filed 1998-12-14(b)

Further, we note that it is unclear whether Construction Associates ever pleaded a cause of action to recover damages for breach of contract against Break-Away as there is no copy of such a pleading in the record. This omission provides an additional ground for denying Construction Associates this relief.

Section 3212(b) requires a party moving for summary judgment to submit a copy of the pleadings filed in the action.

Logan v. L.A. Management & Restaurant Ltd. · filed 2000-09-29(b)

Defendant failed to support its motion with a copy of the pleadings filed in the action and thus was not entitled to summary judgment (see, CPLR 3212 [b]; Deer Park Assocs. v Robbins Store, 243 AD2d 443; McMahon v Wolverine Worldwide, 233 AD2d 587; Dupuy v Carrier Corp., 204 AD2d 977).

CPLR 3212(b) requires a party seeking summary judgment to submit a copy of the pleadings, including when seeking summary judgment by cross motion.

Gallagher v. Telecom · filed 2001-02-07(b)

Defendant failed to support its motion with a copy of the pleadings filed in the action and thus Supreme Court erred in granting the motion for summary judgment dismissing the complaint (see, CPLR 3212 [b]; Logan v L.A. Mgt. & Rest., 275 AD2d 1026; McMahon v Wolverine Worldwide, 233 AD2d 587; Dupuy v Carrier Corp., 204 AD2d 977).

A summary judgment motion must include a copy of the filed pleadings or be denied regardless of its merits.

Niles v. County of Chautauqua · filed 2001-07-03(b)

The failure of the County of Chautauqua (defendant) to support its motion with a copy of the pleadings filed in the action requires denial of its motion for summary judgment dismissing the complaint ... regardless of the merits of the motion.

CPLR 3212(b) requires a summary judgment application to be supported by evidentiary facts from a person with knowledge of the events.

Daniello v. Holy Name Church · filed 2001-08-23(b)

However, counsels’ applications were not substantiated by evidentiary facts from a person with knowledge of how the accident happened as required by CPLR 3212 (b), thereby precluding a finding that plaintiff was entitled to a judgment on liability pursuant to Labor Law § 240 (1) (see, Holt v Welding Servs., 264 AD2d 562, lv dismissed 94 NY2d 899).

A summary judgment motion must include a copy of the filed answer; failure to provide it requires denial regardless of the motion’s merits.

Nationwide Mutual Insurance v. Piper · filed 2001-09-28(b)

The failure of the parties to support their respective motion and cross motion with a copy of the answer filed in each action requires denial of the motion and cross motion (see, CPLR 3212 [b]; DiSano v KBH Constr. Co., 280 AD2d 951, 952), regardless of the merits of the motion and cross motion (see, Niles v County of Chautauqua, 285 AD2d 988).

Section 3212(b) requires a summary judgment motion to include the pleadings; failure to include them requires denial regardless of the motion's merits.

Williams v. County of Genesee · filed 2001-12-21(b)

The failure of those defendants to support their cross motion with a copy of the pleadings filed in the action requires denial of their cross motion for summary judgment (see, CPLR 3212 [b]; DiSano v KBH Constr. Co., 280 AD2d 951, 952; Deer Park Assocs. v Robbins Store, 243 AD2d 443), regardless of the merits of the cross motion (see, Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903; Niles v County of Chautauqua, 285 AD2d 988).

Section 3212(b) requires a summary judgment motion to be supported by an affidavit, the pleadings, and other available proof.

Fiori v. Fiori · filed 2002-02-01(b)

In appeal No. 2, we note at the outset that the court dismissed the first amended petition pursuant to respondent’s oral motion for summary judgment. However, CPLR 3212 (b) provides that a motion for summary judgment “shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.”

Section 3212(b) requires a summary judgment movant to submit a copy of the pleadings; failure to do so requires denial regardless of the motion’s merits.

D.J. Enterprises of WNY, Inc. v. Benderson · filed 2002-05-03(b)

The failure of plaintiff to support its motion with a copy of the pleadings requires denial of the motion, regardless of the merits of the motion (see CPLR 3212 [b]; Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903).

CPLR 3212(b) requires a party seeking summary judgment to include the complaint; failure to do so requires denial of the motion regardless of its merits.

Perez v. Wickman · filed 2002-10-01(b)

The failure of the parties to support their respective motions ... and cross motion with a copy of the complaint filed in the action requires denial of the motions and cross motion (see CPLR 3212 [b]; D.J. Enters. of WNY v Benderson, 294 AD2d 825), regardless of the merits (see Niles v County of Chautauqua, 285 AD2d 988, 989).

A summary judgment motion must include all pleadings; omitting the answer requires summary denial of the motion.

Welton v. Drobnicki · filed 2002-10-24(b)

Initially, defendants are correct in their assertion that plaintiffs’ failure to provide a copy of all of the pleadings with their summary judgment motion required summary denial of the motion (see CPLR 3212 [b]; Deer Park Assoc. v Robbins Store, 243 AD2d 443; McMahon v Wolverine Worldwide, 233 AD2d 587).

Section 3212(b) requires a summary judgment movant to include a copy of the answer; failure to do so requires denial regardless of the motion’s merits.

New York Casualty Insurance v. Kushner · filed 2003-10-02(b)

As plaintiff correctly contends, the court should have denied the motion based on the failure of defendant to support his motion with a copy of the answer, regardless of the merits of the motion (see CPLR 3212 [b]; D.J. Enters. of WNY v Benderson, 294 AD2d 825 [2002]; Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903 [2001]).

A summary judgment motion seeking dismissal of a cross claim must include the cross claimant’s answer; omitting it requires denial of that part of the motion.

Niagara Frontier Transportation Authority v. City of Buffalo Sewer Authority · filed 2003-11-21(b)

With respect to the cross claim of Freeway, O’Brien failed to include the answer of Freeway in support of its motion, and that failure requires denial of that part of the motion with respect to Freeway (see CPLR 3212 [b]; see generally Perez v Wickman [appeal No. 1], 298 AD2d 873, 873-874 [2002]).

CPLR 3212(b) requires a summary judgment movant to attach the pleadings to the motion.

ABC Medical Management, Inc. v. GEICO General Insurance · filed 2003-12-23(b)

First, as an initial matter, although defense counsel states that she has attached copies of the pleadings, a review of the pertinent exhibit shows that only the answer is attached. CPLR 3212 (b) states that a copy of the pleadings must be attached as a prerequisite to a proper summary judgment motion.

Section 3212(b) requires a summary judgment movant to submit the pleading on which the motion is based; failure to do so requires denial of the motion.

Bonded Concrete, Inc. v. Town of Saugerties · filed 2004-01-15(b)

Initially, plaintiffs failure to provide a copy of its pleading in the first action/proceeding—i.e., its verified complaint/petition dated June 5, 1998—with its cross motion for summary judgment required denial of the cross motion (see CPLR 3212 [b]; see also Welton v Drobnicki, 298 AD2d 757 [2002]; Deer Park Assoc. v Robbins Store, 243 AD2d 443 [1997]).

Section 3212(b) requires a summary judgment movant to include copies of the pleadings with its motion papers.

Sted Tenants Owners Corp. v. Chumpitaz · filed 2004-03-22(b)

The plaintiff was not entitled to summary judgment, as the papers submitted in support of its motion failed to include copies of the pleadings in the action (see CPLR 3212 [b]; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]; Lawlor v County of Nassau, 166 AD2d 692 [1990]).

Section 3212(b) generally requires a summary judgment movant to include the pleadings with the motion papers; failure to do so requires summary denial.

Greene v. Wood · filed 2004-04-22(b)

Generally, the movant’s failure to include a copy of the pleadings in the papers supporting a motion for summary judgment “require[s] summary denial of the motion” (Welton v Drobnicki, 298 AD2d 757, 757 [2002]; see CPLR 3212 [b]; Bonded Concrete v Town of Saugerties, 3 AD3d 729, 730 [2004]).

A respondent cannot be awarded summary judgment if it has not answered the petition or submitted its answer with its motion papers.

City of New York v. Mayor of New York · filed 2004-07-29(a), (b)

Respondent Snapple did not answer the petition, as required by CPLR 7804 (c) and (d), or, if respondent Snapple did, it did not submit a copy of its answer to the court with its motion papers. Thus, respondent Snapple cannot be awarded summary judgment (CPLR 3212 [a], [b]; Krasner v Transcontinental Equities, 64 AD2d 551 [1st Dept 1978]).

A summary judgment cross motion satisfies CPLR 3212(b)'s pleadings requirement by incorporating copies of pleadings previously submitted with the initial motion.

Mahone v. Washington · filed 2005-04-29(b)

We note at the outset that Supreme Court erred in determining that the cross motion failed to comply with the requirements of CPLR 3212 (b). Rather, the record establishes that the cross motion incorporated by reference copies of the pleadings previously submitted on the initial motion for summary judgment (see generally Matter of Board of Commrs. of Washington Park of City of Albany, 52 NY 131, 133-134 [1873]).

Section 3212(b) requires a summary judgment movant to include a complete copy of the pleadings in its moving papers.

Multiquest v. Allstate Insurance · filed 2005-12-01(b)

The court also notes that the defendant’s motion papers are defective in that they do not include a complete copy of the pleadings as required by CPLR 3212 (b). There is no copy of the summons and complaint included within defendant’s moving papers.

Section 3212(b) requires a summary judgment motion to be supported by a copy of the pleadings.

Citibank (South Dakota), N.A. v. Martin · filed 2005-12-16(b)

A motion for summary judgment must be supported by a copy of the pleadings (CPLR 3212 [b]), and the pleadings are subject to a number of requirements as to form.

Section 3212(b) requires the pleadings to support a summary judgment motion, but related motions may be considered together when their combined records supply missing pleadings.

Barca v. City of New York · filed 2006-02-15(b)

Considering a summary judgment motion that lacks the pleadings, in contravention of a companion requirement (CPLR 3212 [b]), with a separate pending summary judgment motion that includes similar issues for determination and includes the missing pleadings, is at least as consistent with the conservation of judicial resources as considering an untimely motion. Therefore the answers in the combined record of both motions, as well as the record of Audax Construction’s dismissal in the court file, permit consideration of the two independently inadequate motions on their merits.

Section 3212(a) does not allow a party to obtain summary judgment against another party without having interposed a claim against that party.

Travelers Indemnity Co. v. Commerce & Industry Insurance · filed 2006-04-13(a)

Addressing next Peerless’s allegations in its cross appeal that Supreme Court erred in finding Commerce’s claims against Peerless and Pinchook “premature,” we agree that Commerce’s request for relief should have been denied as a matter of law because Commerce had not interposed a cross claim against Peerless (see CPLR 3212 [a]) and because Pinchook had already been dismissed from the underlying action.

Section 3212(b) requires a summary judgment motion to include the pleadings; failure to include them requires denial regardless of the motion’s merits.

Riddell v. Brown · filed 2006-09-22(b)

It appears on the record before us that defendant failed to support his motion with a copy of the pleadings in the action. That failure requires denial of the motion, regardless of its merits (see CPLR 3212 [b]; Nationwide Mut. Ins. Co. v Piper, 286 AD2d 903 [2001]; Niles v County of Chautauqua, 285 AD2d 988, 989 [2001]).

Section 3212(b) requires a defendant moving for summary judgment to submit its answer; failure to do so requires denial of the motion regardless of its merits.

Notaro v. Bison Construction Corp. · filed 2006-09-22(b)

The record on appeal contains only the answer of defendant Bison Construction Corporation (Bison), and it does not otherwise appear on the record before us that the remaining defendants submitted their respective answers in support of the motion. That failure requires denial of the motion with respect to those defendants, regardless of its merits (see CPLR 3212 [b]; Niles v County of Chautauqua, 285 AD2d 988, 989 [2001]).

Section 3212(b) requires a party seeking summary judgment on cross claims to submit copies of the answers asserting those claims.

Roach v. AVR Realty Co. · filed 2007-06-26(b)

Finally, we note that RBR failed to make a prima facie showing that it was entitled to summary judgment dismissing all cross claims asserted against it because it failed to submit copies of the answers asserting such cross claims against it, as required by CPLR 3212 (b) (see Matsyuk v Konkalipos, 35 AD3d 675 [2006]; Wider v Heller, 24 AD3d 433 [2005]; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663 [2004]; Hamilton v City of New York, 262 AD2d 283 [1999]).

CPLR 3212(b) requires a summary judgment movant to submit a complete set of the pleadings.

Thompson v. Foreign Cars Center, Inc. · filed 2007-05-22(b)

As noted by the plaintiffs in their submissions to the Supreme Court, the defendants Foreign Cars Center, Inc., doing business as Kings Volkswagen, and Mickey Gilbert, individually and as an officer of Foreign Cars Center, Inc. (hereinafter the defendants), failed to include a complete set of the pleadings in support of their motion for summary judgment, as required by CPLR 3212 (b).

CPLR 3212 (b) requires a summary judgment movant to submit a complete set of the pleadings; failure to do so requires denial of the motion.

Sendor v. Chervin · filed 2008-05-27(b)

The defendant Cary Rosner failed to include a complete set of the pleadings in support of his summary judgment motion, as required by CPLR 3212 (b).

Section 3212(b) requires a summary judgment motion to include a complete copy of the pleadings.

Lezell v. Forde · filed 2009-10-15(b)

A motion for summary judgment must be accompanied by a complete copy of the pleadings.