N.Y. C.P.L.R. § 3212

CPLR 3212(f) does not warrant denying summary judgment for outstanding discovery unless the opponent identifies material facts it cannot yet present.

Natoli v. Trader Joe's E. Inc. · filed 2021-10-26(f)

Although depositions had not yet been conducted, defendants failed to demonstrate that facts essential to justify opposition to that portion of the motion may exist but could not be stated ( see CPLR 3212[f]). Defendants failed to identify what information is in the exclusive control of plaintiff that would raise a material issue of fact such that CPLR 3212 (f) would warrant denial of the motion ( see McDaniel v Codi Transp., Ltd ., 149 AD3d 595, 596 [1st Dept 2017]).

CPLR 3212(f) permits further discovery before summary judgment when facts supporting the opposing party's position may exist but cannot yet be stated.

Seem v. Premier Camp Co., LLC · filed 2021-12-15(f)

Moreover, contrary to the plaintiff's contention, Dileo's motion was not premature. "CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated" ( Juseinoski v New York Hosp. Med. Ctr. of Queens , 29 AD3d 636, 637; see CPLR 3212[f]; Haidhaqi v Metropolitan Transp. Auth. , 153 AD3d 1328, 1329). Here, the plaintiff failed to establish that discovery may result in disclosure of evidence which would support his argument that his injuries resulted from a gravity-related risk within the ambit of Labor Law § 240(1) ( see Anzel v Pistorino , 105 AD3d 784, 786; cf. Sepulveda v Cammeby's Mgt. Co., LLC , 119 AD3d 927, 927).

CPLR 3212(f) does not require delaying summary judgment for discovery when the party opposing the motion already has personal knowledge of the relevant facts.

Rodriguez v. New York Cross · filed 2021-12-28(f)

Since defendant driver had personal knowledge of the facts, additional discovery would not reveal any relevant information unknown to defendants ( see CPLR 3212[f]; Avant v Cepin Livery Corp ., 74 AD3d 533, 534 [1st Dept 2010]).

Section 3212(f) permits a court to defer summary judgment when further discovery may produce relevant evidence or facts essential to oppose the motion are exclusively within the movant's knowledge and control.

Toltchelnikova v. Community Recycling, LLC · filed 2021-08-18(f)

Contrary to the opponents' contention, the motion was not premature. They failed to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant ( see CPLR 3212[f]; Sapienza v Harrison , 191 AD3d 1028, 1031).

Section 3212(f) permits denial of summary judgment as premature when facts needed to oppose the motion may exist but remain within the movant’s exclusive knowledge.

Corona v. HHSC 13th St. Dev. Corp. · filed 2021-09-16(f)

Defendants' motion is premature with respect to the Labor Law § 200 and common-law negligence claims, since "it appear[s] . . . that facts essential to justify opposition may exist but cannot . . . be stated" (CPLR 3212[f]) because they lie within defendants' exclusive knowledge ( see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP , 44 AD3d 557, 557 [1st Dept 2007]; Lyons v New York City Economic Dev. Corp. , 182 AD3d 499 [1st Dept 2020]).

CPLR 3212(f) does not make a summary judgment motion premature when the request for additional discovery rests only on conjecture.

Rios v. City of New York · filed 2021-11-09(f)

We reject plaintiff's assertion that the motion is premature because additional discovery is necessary under CPLR 3212(f). Plaintiff fails to offer anything other than conjecture to support this position ( see Voluto Ventures, Inc v Jenkins & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [1st Dept 2007]; Global Mins. and Metals Corp. v Holme , 35 AD3d 93, 103 [1st Dept 2006], lv denied 8 NY3d 804 [2007]).

Section 3212(f) requires an evidentiary basis to delay summary judgment for discovery that may yield relevant evidence or reveal essential facts within the opposing party's exclusive knowledge and control.

Abruzzi v. Bond Realty, Inc. · filed 2022-01-12(f)

Furthermore, contrary to the plaintiff's contention, the defendants' motions were not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motions were exclusively within the knowledge and control of the defendants ( see CPLR 3212[f]; 3211[d]; Niyazov v Hunter EMS, Inc. , 154 AD3d 954, 955; Kimyagarov v Nixon Taxi Corp. , 45 AD3d 736, 737).

CPLR 3212(b) requires denial of summary judgment when questions of fact remain.

Stahlanson Associates v. Comlo Associates · filed 1994-09-08(b)

We disagree with the IAS Court’s characterization of the evidence as "compelling” and find questions of fact presented as to whether the advances in issue were personal loans "made directly on behalf of defendants and not the partnership”, as the IAS Court found. Accordingly, summary judgment should not have been granted to plaintiffs.

Section 3212 requires denial of summary judgment when an ambiguous term creates a factual dispute over the parties’ intent that must be resolved using disputed extrinsic evidence.

Tierra Properties v. A.I. Lloyd's Insurance · filed 1994-07-14

The resulting ambiguity creates an issue of fact as to the meaning of the term, since the parties’ intent must be gathered from disputed extrinsic evidence (Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291), therefore, summary judgment must be denied.

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

Aviation Petroleum, Inc. v. Independent Oil, Inc. · filed 1994-11-28(b)

The Supreme Court properly denied the plaintiff’s motion for summary judgment because of the existence of numerous factual issues, including whether the defendant had authority to transfer the funds in question (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Under CPLR 3212, the court identifies factual issues rather than resolves them and denies summary judgment when a factual issue remains.

Horizon Hobby Distributors v. Gurriero · filed 1994-03-31

There are factual questions as to whether defendants Island Hobbies notified plaintiff as to its change of status. Defendants both claim they provided such notice. Plaintiff denies this. "Upon a motion for summary judgment the court’s function is one of issue finding rather than issue determination” (McKinney v Setteducatti, 183 AD2d 879, 880 [2d Dept 1992]). Accordingly, plaintiff’s motion for summary judgment and defendants’ cross motion seeking summary judgment dismissing the complaint are denied.

Section 3212(b) does not permit summary judgment when factual issues remain about the parties’ intent to create an equitable mortgage.

New York TRW Title Insurance v. Wade's Canadian Inn and Cocktail Lounge, Inc. · filed 1993-12-09(b)

Rather, we discern the presence of factual issues with regard to the parties’ intent. ... In view of this, we are inclined to find that summary judgment is unwarranted.

Section 3212 precludes summary judgment when factual disputes prevent the court from resolving a potentially dispositive defense.

Cupples Products Division of H.H. Robertson Co. v. Morgan Guaranty Trust Co. · filed 1993-12-28

We affirm the order denying Federal’s motion for summary judgment, albeit on slightly different grounds than those expressed by the IAS Court. ... We find that there exist issues of fact concerning the nature of the work, precluding a determination as to whether it fell within the scope of the statute.

Section 3212 permits denial of summary judgment when factual questions remain about the plaintiff’s allegations.

Dursi v. New York City Transit Authority · filed 1993-11-29

Therefore, since the complaint states a cause of action and there are questions of fact as to the plaintiff’s allegations, the court properly denied the Transit defendants’ motion (cf., Coppersmith v City of New York, 194 AD2d 586).

Section 3212 does not permit summary judgment when disputed facts must be resolved before the court can determine whether a qualified privilege applies.

Lee v. City of Rochester · filed 1993-07-16

Although it is undisputed that Chechak’s statements were made in response to a reporter’s question, the content of those statements is disputed, as is the question whether reference to a prior incident was germane to the shooting being investigated by the police. Those are questions of fact that must be resolved before it can be determined whether a qualified privilege existed, which is a question of law. Thus, Chechak and the City are not entitled to summary judgment.

Section 3212 requires denial of summary judgment when material questions of fact remain.

Gordon v. Green Point Savings Bank · filed 1992-12-14

Both plaintiff’s motion and MHT’s cross motion seeking summary judgment must be denied because there are numerous unresolved questions of fact.

Section 3212(b) makes summary judgment inappropriate when questions of fact are evident.

Stoehr v. Levere · filed 1992-05-26(b)

Where questions of fact are evident, summary judgment is inappropriate (CPLR 3212 [b]; Museums at Stony Brook v Village of Patchogue Fire Dept., 146 AD2d 572).

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

Sea Crest Construction Corp. v. Centennial Insurance · filed 1991-07-18(b)

Contrary to defendant’s arguments, the existence of questions of fact in this appeal preclude a granting of summary judgment in its favor (see, CPLR 3212 [b]).

CPLR 3212(b) precludes summary judgment when the opposing party produces evidentiary proof showing factual questions.

Cortland Pump & Equipment Co. v. Coots · filed 1990-12-20(b)

Upon a review of the papers submitted on the motion, we agree with Supreme Court that plaintiff has produced evidentiary proof demonstrating the existence of factual questions sufficient to preclude summary judgment (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212 requires denial of summary judgment when material questions of fact remain.

Getty Refining & Marketing v. Linden Maintenance Corp. · filed 1990-12-10

Since sharp questions of fact exist as to what the payments the plaintiff seeks to recover actually represent, the Supreme Court properly denied the plaintiff summary judgment (see, CPLR 3212).

Section 3212 permits summary judgment dismissing a complaint when the record presents no issue of fact.

Brener & Lewis Management, Inc. v. Engel · filed 1990-12-06

Based on our review of the record, we find no issue of fact and grant defendants’ motion for summary judgment dismissing the complaint.

Section 3212 permits summary judgment when no bona fide material question of fact precludes it.

Sabbagh v. Pantano · filed 1991-02-28

No bona fide material questions of fact exist which preclude the grant of summary judgment to plaintiff.

CPLR 3212 does not permit summary judgment when a material question of fact remains.

Clarkstown Teachers Ass'n v. Board of Education · filed 1990-06-28

Inasmuch as the parties’ papers before Supreme Court presented a material question of fact respecting whether the amendment to the bargaining agreement was in effect prior to the effective date of the statutory amendment, summary judgment was inappropriate (see, CPLR 3212; see also, BlakeVeeder Realty v Cray ford, 110 AD2d 1007, 1008).

Section 3212(b) requires denial of summary judgment when a material question of fact remains.

Mallon v. Parness · filed 1990-11-01(b)

As a material question of fact exists, summary judgment ... was inappropriately granted (CPLR 3212 [b]; see, Computer Strategies v Commodore Business Machs., 105 AD2d 167, 175).

CPLR 3212 permits summary judgment as to liability when there is no valid disputed question of fact.

Kennedy v. News America Publishing, Inc. · filed 1990-05-17

Since there is no valid disputed question of fact, plaintiff is entitled to summary judgment in his favor as to liability with respect to the 845 transparencies which were not returned to him.

Section 3212 requires denial of summary judgment when unresolved questions of fact remain.

Shafran v. Kule · filed 1990-03-13

Accordingly, there exist unresolved questions of fact which warrant a denial of the summary judgment motion.

CPLR 3212 precludes summary judgment when material questions of fact remain unresolved.

Charles B. De Than Group v. Richmond · filed 1990-04-19

In any event, material questions, including those concerning the "value” of the contract, the alleged multiple transactions and the oral agreements, cannot be resolved on the record, precluding the granting of summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223).

Section 3212 precludes summary judgment when material questions of fact remain.

Key-Ventures, Inc. v. Rappleye · filed 1990-06-19

Whether the payment of a brokerage commission was conditioned upon the defendant finding a suitable replacement home raises a question of fact precluding the grant of summary judgment.

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

Burnside v. City of New York · filed 1989-05-15

Plaintiffs cross motion for summary judgment is denied as triable issues of fact exist requiring a trial.

Under § 3212, opposing papers that raise an issue of fact can defeat a motion for summary judgment.

Tuck Industries, Inc. v. Reichhold Chemicals, Inc. · filed 1989-06-12

We conclude that Tuck’s papers submitted in opposition to Reichhold’s summary judgment motion raise an issue of fact as to whether the Firestone-Tylac blend of latex, claimed by Reichhold to conform to the specifications, did so conform.

CPLR 3212(b) precludes summary judgment when conflicting evidence presents a triable issue of fact.

Scally v. Scally · filed 1989-06-15(b)

Finally, the conflicting evidence submitted by the parties regarding whether plaintiff voluntarily left the marital home because of one of the conditions of the agreement or because of the actions of defendant is sufficient to preclude summary judgment (see, CPLR 3212 [b]; Ehrlich v American Moninger Greenhouse Mfg. Co., 26 NY2d 255, 259).

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

Commissioner of Transportation v. Lane · filed 1989-07-07

None of the respondent’s defenses have any merit and there is no issue of fact requiring a trial. The motion for summary judgment is granted and counsel for petitioner shall submit an order in conformity herewith, without motion costs.

Section 3212 permits summary judgment when the movant establishes entitlement as a matter of law and the opposing party fails to raise a triable issue of fact.

Drake v. Prudential Insurance · filed 1989-09-25

The plaintiffs failed to raise a triable issue as to the duration of the alleged icy condition. Therefore, the Supreme Court properly granted summary judgment dismissing the complaint.

Section 3212 requires denial of summary judgment on damages when triable issues of fact remain about the amount and extent of damages.

Norstar Leasing Services, Inc. v. Colonie Coliseum Enterprises, Inc. · filed 1989-10-18

Because there are triable issues of fact relating to the amount and extent of damages (CPLR 3212), the motion and cross motion for summary judgment as to this issue are denied.

CPLR 3212 summary judgment is unwarranted when genuine, material factual issues remain unresolved.

Papo v. McGrail · filed 1989-11-28

The record reveals no discovery has yet occurred and many genuine and material issues have yet to be resolved. ... Accordingly, summary disposition of plaintiffs claims is not warranted.

Section 3212 precludes summary judgment when conflicting affidavits raise a triable issue about whether a plaintiff reasonably mitigated damages.

Enman v. Person · filed 1989-11-28

Summary judgment was precluded by triable issues of fact as to whether plaintiff’s alleged efforts to mitigate damages, by attempting to secure other employment after his discharge, were reasonable, particularly since conflicting affidavits submitted by the parties in the court below drew completely different inferences from the same undisputed facts.

Under CPLR 3212(b), summary judgment must be denied when the opposing party presents evidence raising factual issues that require a trial.

Guzman v. American Life Insurance · filed 1989-12-04(b)

Thus, the defendant has presented issues of fact which require a trial ... (see, Zuckerman v City of New York, 49 NY2d 557; Krupp v Aetna Life & Cas. Co., 103 AD2d 252; CPLR 3212 [b]).

CPLR 3212(b) does not permit summary judgment when material issues of fact remain.

Nikolis v. Reznick · filed 1989-12-04(b)

The record reveals that there are material issues of fact including, inter alia, whether the limitation of liability clause in the contract at issue applies because the defendant failed to act in good faith to perform their duties under the contract (see, Mancini-CioLo v Scaramellino, 118 AD2d 761, 762; CPLR 3212 [b]).

CPLR 3212 does not permit summary judgment when ambiguities in contracts raise material factual questions.

57 Great Jones Street Associates v. Andy Warhol Enterprises, Inc. · filed 1989-12-05

Consequently, these ambiguities, and others, raise material factual questions which cannot be resolved on this summary judgment motion.

Section 3212 permits summary judgment when the moving party’s proof is sufficient and the opposing submissions fail to raise a triable issue.

Fogel v. Teachers College of Columbia University · filed 1989-12-05

Defendants submitted sufficient documentary proof of their compliance with the Education Law. The allegations in the verified complaint and plaintiff’s attorney’s affirmation fail to refute defendants’ proof so as to raise any triable issue.

Section 3212 does not permit summary judgment when disputed facts must be resolved at trial.

Rubin v. Dondysh · filed 1989-12-19

Plainly, these are factual matters which must await the trial and cannot be finally resolved upon motion for summary judgment.

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law with admissible evidence; conflicting evidence presenting a triable issue precludes judgment.

Davidowitz v. Cazes · filed 1990-01-25(b)

Supreme Court properly concluded that the conflicting evidence presented in the examinations before trial and the affidavits submitted prevented the grant of summary judgment.

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

Portec, Inc. v. Gulf Oil Corp. · filed 1990-02-01(b)

These circumstances, coupled with the absence of evidence regarding the condition of the oil when it left defendant’s custody, preclude the granting of summary judgment (see, Wright Sales v Yangming Mar. Transp. Corp., 124 AD2d 509, 512).

Section 3212 requires denial of summary judgment when conflicting evidence raises triable issues of fact.

Crawford v. Hospital of Albert Einstein College of Medicine · filed 1990-03-13

Accordingly, these reed controversies raise many triable issues of fact which warrant a denial of the summary judgment motion.

Section 3212(b) permits summary judgment only when no triable issue of fact prevents judgment as a matter of law.

Saranac Lake Federal Savings & Loan Ass'n v. Fidelity & Deposit Co. · filed 1990-03-29(b)

In the case at bar, it is our view that sufficient questions of fact have been presented so as to justify the denial of summary judgment dismissing the complaint.

CPLR 3212(b) requires denial of summary judgment when disputed facts present issues for trial.

Dimatos v. Michel · filed 1990-04-05(b)

Although defendant in his own affidavits disputes these contentions, it is abundantly clear that these and other disputed issues present questions of fact which should be resolved by a trier of fact. Accordingly, Supreme Court properly denied defendant’s motion (see, CPLR 3212 [b]).

CPLR 3212(b) requires denial of summary judgment when disputed facts concerning liability must be resolved at trial.

Lombardoni v. Boccaccio · filed 1990-04-05(b)

Although plaintiffs contend that there are no outstanding questions of fact, including defendants’ intent to commit these torts, the record shows otherwise. Defendants also effectively dispute plaintiffs’ allegations for summary judgment purposes (see, CPLR 3212 [b]). Therefore, their resolution must await trial.

CPLR 3212 does not permit summary judgment when sworn testimony raises a triable issue of fact about a disputed authorization.

Martinez v. Moroldo · filed 1990-04-12

Although plaintiff’s mother is no longer alive, her sworn testimony denying that she ever provided permission to Interboro or the city to deliver her son in the absence of another person being on the scene is certainly sufficient to raise a triable issue of fact even assuming that defendants could be accorded summary judgment in their favor on a defense not asserted in their respective answers. ... Accordingly, the court, under the circumstances herein, should not have granted defendants’ motions for summary judgment pursuant to CPLR 3212 dismissing the complaint as against them.

Section 3212 does not permit summary judgment when a question remains about the existence of a triable issue.

Intershoe, Inc. v. Bankers Trust Co. · filed 1990-04-19

Summary judgment is inappropriate where there is any question as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Section 3212 requires denial of summary judgment when viable counterclaims or an affirmative defense present triable issues of fact.

European American Bank v. Mr. Wemmick, Ltd. · filed 1990-04-23

In light of the appellants’ viable second and third counterclaims alleging the breach of the plaintiff’s fiduciary duty of good-faith dealing and fraud, and the appellants’ affirmative defense of equitable estoppel which presented triable issues of fact, the Supreme Court should not have granted summary judgment.

Section 3212 permits summary judgment dismissing an indemnity claim when no triable issue of fact remains as to whether the third-party defendants caused all of the claimant’s liability.

Cosco Industries, Inc. v. Johnson & Higgins · filed 1990-05-08

Summary judgment was correctly granted as to indemnity. There is no triable issue of fact as to whether or not all of the third-party plaintiff’s liability to the primary plaintiff is attributable to wrongdoing on the part of the third-party defendants.

Summary judgment is precluded when the evidence presents a triable issue of fact.

In re the Estate of Coons · filed 1990-05-17

While respondent maintains she was unaware of this correspondence, this does not vitiate the existence of a triable issue of fact precluding summary judgment of this issue.

Section 3212 does not permit summary judgment when triable issues of fact remain as to breach of warranty and damages.

Wintel Service Corp. v. MSW Electronics Corp. · filed 1990-05-29

Although we find that the express warranty was not effectively disclaimed, triable issues of fact nevertheless exist as to whether Wintel breached the express warranty and with respect to damages.

Summary judgment is precluded when conflicting evidence presents triable issues of fact.

Shaheen v. International Business Machines Corp. · filed 1990-06-14

Given the foregoing, the question of whether the wire became loose and went undetected because of some fault on the part of Sarkisian or King, or because of plaintiff’s own conduct, presents triable fact issues precluding summary judgment.

CPLR 3212 requires denial of summary judgment when a triable issue of fact remains.

Balfour v. Skyline Car Service of Manhattan, Inc. · filed 1990-06-28

Summary judgment was properly denied. Triable issues of fact were raised as to the existence of an employer-employee relationship between Skyline, Nguyen and Albay.

Section 3212 permits summary judgment when binding account statements leave no bona fide issue of fact about the amount owed.

Congress Talcott Corp. v. Damino Accessories, Inc. · filed 1990-10-02

In light of defendants’ failure to interpose objections in accordance therewith, the monthly account statements became binding upon them, ... and Congress was entitled to summary judgment. ... this case does not raise bona fide issues of fact with respect to the amounts in question.

Section 3212 does not allow summary judgment when foreseeability and proximate cause must be resolved at trial.

Wooster v. Soriano · filed 1990-11-15

Summary judgment was properly denied. In O’Connor v Pecoraro (141 AD2d 443, 445) it was noted that “owners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact of the issues of foreseeability and proximate cause unique to the particular case”.

Section 3212 permits summary judgment when an opposing contention raises no issue of fact requiring denial of the motion.

Pioneer Insurance v. Deleo · filed 1990-11-29

However, a corporation can only act through its agents. This contention therefore does not raise an issue of fact requiring denial of the motion for summary judgment (CPLR 3212; see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).

Section 3212 requires denial of summary judgment when material factual issues remain about whether promissory estoppel applies.

Allen v. Board of Education of Union Free School District No. 20 · filed 1990-12-03

The existence of these and other material issues of fact as to whether the doctrine of promissory estoppel should be applied, warrants the denial of summary judgment.

Section 3212 precludes summary judgment when material factual issues remain for trial.

Weiner v. Memphis Uptown Associates · filed 1990-12-18

The IAS court did not err in determining that summary judgment in appellant’s favor was precluded by triable issues of fact as to whether the appellant had sought rescission within 15 days of presentation of the amendment, and as to whether the changes contained in the amendment were "material revisions” within the meaning of the offering plan and purchase agreement.

CPLR 3212(b) requires denial of summary judgment when material factual issues remain for trial.

Al-Care, C.S.W., P.C. v. Blue Shield of Northeastern New York, Inc. · filed 1991-01-10(b)

Here, Supreme Court correctly found that material issues of fact were presented which justified denial of the applicable parties’ cross motions for summary judgment (see, CPLR 3212 [b]).

CPLR 3212 permits summary judgment when an unsubstantiated allegation raises no triable issue of fact.

Brooks v. Kenton Associates, Ltd. · filed 1991-01-15

We agree with Supreme Court that plaintiff has raised no triable issue with regard to The Landlord’s acquiescence in her tenancy. Her unsubstantiated allegation that The Landlord’s predecessor in interest knew of her occupancy is insufficient to defeat the motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212 does not permit summary judgment when a triable issue remains as to an accord-and-satisfaction defense.

Carmichael v. Hoover Institution on War, Revolution & Peace · filed 1991-01-22

Thus, a triable issue is presented ...as to the defense of accord and satisfaction.

CPLR 3212 does not permit summary judgment when factual issues remain about whether an insured’s delay in giving notice may be excused.

Winstead v. Uniondale Union Free School District · filed 1991-02-11

On this appeal by Sterling, we conclude that there are issues of fact as to whether the delay of Richard Garrett, Jr., in notifying it of the underlying incident, as well as his delay in notifying it of the claim later asserted against him based on that incident, may be excused. We therefore find that the Supreme Court erred in granting summary judgment to Richard Garrett, Jr.

Triable issues of fact about the scope of a contract preclude summary judgment.

Harvey v. Amateur Hockey Ass'n of United States · filed 1991-03-12

Finally, we find that triable issues of fact, precluding summary judgment, have been raised as to whether the phrase "print commercial materials” as utilized in the parties’ March 12, 1980 Agreement encompassed Harvey’s and Volkswagen’s right to distribute a poster-sized print of the United States Hockey Team.

Summary judgment must be denied when a factual dispute requires resolution by the trier of fact.

Bauman Associates, Inc. v. H & M International Transport, Inc. · filed 1991-03-14

In any event, the record herein reveals an issue of fact sufficient to defeat the motion for summary judgment regarding the existence of an oral contract since it is axiomatic that “on such a motion, the court’s role is limited to issue finding, not issue resolution” (Kriz v Schum, 75 NY2d 25, 33).

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

Foresite Properties, Inc. v. Halsdorf · filed 1991-04-04(b)

Since we cannot say as a matter of law that Halsdorf s assertions in opposition do not create a triable question of fact concerning defendants’ claim of fraudulent misrepresentation (see, CPLR 3212 [b]), Supreme Court did not err in denying F.J.E.’s summary judgment motion.

Summary judgment should not be granted when there is any doubt about whether a factual issue exists.

South Star, Inc. v. Afshar · filed 1991-04-25

Summary judgment should not be granted where there is any doubt as to the existence of an issue of fact. ... The affidavit of Powsner, plaintiff’s assignor, president and counsel, together with the uncontraverted letter dated October 11, 1988, from the defendant’s other attorney raises a triable issue with respect to the terms under which the release, relied upon by the defendant, was to be given effect.

Under CPLR 3212(b), summary judgment must be denied when the record presents triable issues of fact.

Puccio v. Julian · filed 1991-05-02(b)

In our view, the record presents triable issues of fact on the relationship between Julian and Julian Mechanical which may not be resolved upon a motion for summary judgment (see, CPLR 3212 [b]; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) precludes summary judgment when the opposing party’s evidence raises a triable issue of fact.

B-S Industrial Contractors, Inc. v. Town of Wells · filed 1991-05-16(b)

Although defendant maintains that plaintiff did not follow certain procedures in the contract that would entitle it to payment, plaintiff’s papers sufficiently raise enough doubt on this issue that summary resolution at this point would be improper (see, CPLR 3212 [b]).

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

Global Cosmetics International Ltd. v. Chemical Bank · filed 1991-05-20(b)

Upon a review of the record, it is evident that material issues of fact exist, including, but not limited to, whether the defendant notified the plaintiff of the loss of the check within a "reasonable time” as required by UCC 4-202 (1) (e) (see, CPLR 3212 [b]; cf., Whitehall Packing Co. v First Natl. City Bank, 55 AD2d 675).

Under CPLR 3212, unsupported, conclusory speculation does not raise a material question of fact sufficient to defeat summary judgment.

United Bank of Kuwait PLC v. Bank of New York · filed 1991-06-04

In view of defendant’s clear violation of the language of the contract, its unsupported, conclusory speculation that either Webb may not have been entirely truthful in his affidavit or else some other unidentified individual might have utilized his name is scarcely adequate to raise a material question of fact such as would avoid summary judgment (see, Zuckerman v City of New York, 49 NY2d 557; Forray v New York Hosp., 101 AD2d 740).

CPLR 3212(b) bars summary judgment when the opposing party presents triable questions of fact.

Brady v. Cocozzo · filed 1991-06-06(b)

This evidence clearly raises a question of fact as to defendant’s knowledge and whether this knowledge was conveyed to Getty. When triable questions of fact have been presented by a party opposing summary judgment, the granting of such a motion is improper (CPLR 3212 [b]).

Section 3212 requires denial of summary judgment when evidence of gross negligence raises a triable issue of fact.

David Gutter Furs v. Jewelers Protection Services, Ltd. · filed 1991-06-13

In light of this record, it was error for the IAS part to find, as a matter of law, that plaintiff had failed to come forward with sufficient evidence of gross negligence to raise triable issues of fact and thus defeat defendant’s motion for summary judgment.

Section 3212(b) requires denial of summary judgment when the papers raise triable issues of fact that cannot be resolved as a matter of law.

Barclays Bank of New York v. Heady Electric Co. · filed 1991-06-27(b)

Because these and other issues raised cannot be resolved on the papers as a matter of law, their resolution must await trial (see, CPLR 3212 [b]).

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

Marett v. Pegalis & Wachsman, P. C. · filed 1991-09-30(b)

Although we find that the Supreme Court improperly referred the appellant’s summary judgment motion to the Referee to hear and determine, upon examination of the record (see, CPLR 3212 [b]; W. W. W. Assocs. v Giancontieri, 152 AD2d 333, revd on other grounds 77 NY2d 157; Grimaldi v Pagan, 135 AD2d 496), we agree that the denial of summary judgment was proper. Triable issues of fact exist in regard to whether Lader obtained the medical malpractice and negligence cases he referred to the appellant by unethical means.

Section 3212(b) requires denial of summary judgment when disputed material facts must be resolved at trial.

Commerce & Industry Insurance v. Kerby Saunders, Inc. · filed 1992-02-04(b)

We agree with the IAS court that disputed material issues of fact exist that can be resolved only at trial (CPLR 3212 [b]).

Section 3212(b) makes summary judgment inappropriate when a material issue of fact requires a trial.

In re the Estate of O'Brien · filed 1992-04-24(b)

"While summary judgment may be available in probate proceedings (Matter of Pascal, 309 NY 108), that remedy is inappropriate in any case where there are material issues of fact (see, CPLR 3212 [b])” (Matter of Pollock, 64 NY2d 1156, 1158).

Section 3212(b) precludes summary judgment when factual disputes prevent the claims from being resolved as a matter of law.

Ridgeline Constructors, Inc. v. Elmira Glass Technology Corp. · filed 1992-05-14(b)

Even assuming, arguendo, that defendants’ submissions are sufficient to satisfy their initial burden of proof on a motion for summary judgment (CPLR 3212 [b]), as noted by Supreme Court there are a plethora of factual issues which preclude granting that relief. In view of the sharp conflict in testimony among the deponents, it cannot seriously be contended that the issues of whether an oral agreement existed and whether the April proposal was intended by the parties to be an enforceable contract can be resolved as a matter of law.

Section 3212(b) precludes summary judgment when a triable issue of fact remains about the amount owed.

Carl Zeiss, Inc. v. Micro Med Instruments, Inc. · filed 1992-10-26(b)

On the other hand, there is a triable issue of fact with regard to the dollar amount of the commissions that the plaintiff owes the defendant which precludes the granting of summary judgment on the remainder of the defendant’s fourth counterclaim (see, CPLR 3212 [b]).

Summary judgment is proper when the parties opposing it fail to raise a triable issue of fact.

Kimberly Services, Inc. v. Bakker · filed 1992-11-02(b)

The appellants have failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212(b) permits summary judgment when the record raises no triable issue of fact as to a necessary element of the claim.

Prudential Insurance v. Dewey, Ballantine, Bushby, Palmer & Wood · filed 1992-11-19(b)

Having concluded that Gilmartin owed Prudential a duty of care, we now turn to the question of whether Prudential has demonstrated that there is a triable issue of fact as to whether that duty was breached here (see, CPLR 3212 [b]). ... We can only conclude on these facts, where neither procedural nor substantive misrepresentations were made by Gilmartin, that the law firm was properly awarded summary judgment.

Section 3212 permits summary judgment when there are no triable issues of fact.

Davidson Pipe Supply Co. v. Wyoming County Industrial Development Agency · filed 1993-02-04

Also, where there are no triable issues of fact, as here, summary judgment is appropriate (see, Zuckerman v City of New York, 49 NY2d 557).

Section 3212 permits summary judgment when no triable issues of fact preclude it.

McGovern v. City of New York · filed 1993-02-16

There exist no triable issues of fact which preclude the granting of summary judgment to the respondent (see, CPLR 3212).

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

Silver v. Jimsam Sales Corp. · filed 1993-02-16(b)

The defendants have failed to raise any triable issue of fact (see, CPLR 3212 [b]).

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

Cerrato v. Cocozza · filed 1993-04-19

The appellant has failed to raise any triable issues of fact which would preclude the granting of summary judgment (see, CPLR 3212).

Under CPLR 3212, expert affidavits that raise a triable issue of fact can warrant denial of summary judgment.

Cirino v. Greek Orthodox Community of Yonkers, Inc. · filed 1993-05-03

The affidavits submitted by the parties’ experts raised triable issues of fact (see, CPLR 3212) as to whether the height of the guardrails on the second floor of the defendants’ premises complied with the pertinent regulations of the City of Yonkers Building Code. It was therefore proper for the Supreme Court to deny the defendants’ motion for summary judgment dismissing the complaint.

Section 3212(b) requires a party opposing summary judgment to raise a triable issue of fact to defeat the motion.

Metzger v. Nick Scaglione, Inc. · filed 1993-06-07(b)

The plaintiff has failed to raise any triable issues of fact (see, CPLR 3212 [b]) which would defeat the defendant’s motion.

Section 3212 requires summary judgment unless a triable issue of fact is presented.

Lothar's of California, Inc. v. Weintraub · filed 1993-07-08

Plaintiff has not raised an issue of triable fact with regard to defendant’s motion for summary judgment dismissing the complaint. A motion for summary judgment must be granted unless a triable issue of fact is presented.

Section 3212(b) permits summary judgment when the opposing party fails to present sufficient proof of a triable issue of fact.

Clifton Country Road Associates v. Vinciguerra · filed 1993-07-29(b)

Consequently, because defendant failed to set forth sufficient proof establishing triable issues as to the parties’ agreement, summary judgment should be granted to plaintiff (see, CPLR 3212 [b]).

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

Licata v. Space Unlimited, Inc. · filed 1993-09-20(b)

The plaintiff has failed to raise any triable issues of fact as would preclude granting the respondent’s motion for summary judgment (see, CPLR 3212 [b]).

Section 3212 permits summary judgment when the record reveals no factual issue and the parties do not seek additional discovery.

Hanna v. First National Bank · filed 1993-09-24

Fleetbank also contends that plaintiffs’ motion for summary judgment, in regard to the last, and most recent check, which did not contain any restrictive language, should be denied because of the possibility of a question of fact as to whether or not plaintiffs had knowledge that this check would be dishonored. However, there is nothing contained in the record which would suggest such an issue of fact, and neither plaintiffs nor Fleetbank have opposed the respective motions for summary judgment based upon the request for additional discovery.

Under CPLR 3212(b), the absence of a triable issue of fact supports judgment without a trial.

Tahmisyan v. Calderon · filed 1993-10-18(b)

The defendant has presented no triable issues of fact (see, CPLR 3212 [b]).

Section 3212 requires denial of summary judgment when the record raises triable issues of fact.

Muttontown Realty Corp. v. Schwartz · filed 1993-10-25

The record raises triable issues of fact (see, CPLR 3212) as to whether the plaintiff waived timely performance on the part of the defendants (see, Ranfro Dev. Corp. v Home Funding Co., 26 AD2d 955).

Section 3212 precludes summary judgment when triable issues of fact require a trial.

Devlin v. Video Services Acquisition Corp. · filed 1993-10-26

The IAS Court properly determined that summary judgment dismissing the defendants’ first, second, third, fifth, sixth and seventh counterclaims was precluded by triable issues of fact.

CPLR 3212 permits summary judgment when the plaintiff fails to demonstrate any triable issue of fact.

Levine v. Forty Second Street Co. · filed 1993-11-01

The plaintiff has failed to demonstrate the existence of any triable issues of fact (see, CPLR 3212).

Summary judgment is proper when subsequent alterations to a note raise no triable issue of fact because the guarantors consented to changes in advance.

Cove Hollow Realty Corp. v. 1426 Third Avenue Corp. · filed 1993-11-09

Consequently, and contrary to co-defendant Davis’ contention, any subsequent alterations do not present a triable issue of fact. ... The IAS Court properly granted summary judgment (see, Becker v Faber, 280 NY 146).

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

Daley v. Related Companies · filed 1993-11-16

The IAS Court properly denied plaintiff’s motion for summary judgment seeking to enforce an alleged May 13, 1983 Employment Agreement ("Agreement”). Triable issues of fact exist, including, inter alia, whether Related had assented to the Agreement (see, Matter of Tanenbaum Textile Co. v Schlanger, 287 NY 400, 404), and whether a condition precedent to the legal effectiveness of that writing was a manifestation of consent by Related’s President thereto, and the physical delivery of the document to the plaintiff (see, Manhattan Theatre Club v Bohemian Benevolent & Literary Assn., 64 NY2d 1069, affg 102 AD2d 788).

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

Pfeiffer v. Hoye · filed 1993-11-22(b)

Contrary to the contentions of the appellant, the Supreme Court correctly concluded that there were triable issues of fact as to the occurrence of the accident and whether the appellant was free from negligence (see, CPLR 3212 [b]; Rotuba Extruders v Ceppos, 46 NY2d 223; Crowley v Acampora, 144 AD2d 330).

CPLR 3212 requires denial of summary judgment when a party raises a triable issue of fact.

Holly v. Richtberg · filed 1993-12-13

The plaintiffs have raised triable issues of fact (see, CPLR 3212) as to whether the offending instrumentality was situated on the property owned by the defendants.

CPLR 3212 permits summary judgment when the opposing papers fail to raise a genuine issue of fact for trial.

Sunkyong America, Inc. v. Beta Sound of Music Corp. · filed 1993-12-14

Finally, we agree with the IAS Court that the papers submitted by the defendant in opposition to the motion for summary judgment failed to raise any bona fide issue of fact in support of the counterclaims for breach of contract and breach of the duty of good faith and fair dealing which would preclude summary judgment in the plaintiffs favor (see, Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Summary judgment must be denied when the opposing affidavit raises triable issues of fact.

Squicciarini v. Park Ridge at Terryville Associates · filed 1993-12-20(b)

Inasmuch as the defendant’s affidavit raises triable issues of fact, we find that the Supreme Court properly denied the plaintiffs summary judgment (see, CPLR 3212 [b]; Spence v Curry, 126 AD2d 632).

CPLR 3212 permits a court to resolve independent contractor status as a matter of law when the evidence concerning control presents no conflict.

Lazo v. Mak's Trading Co. · filed 1993-12-21

Order of Supreme Court, New York County (Stuart C. Cohen, J.), entered on or about November 16, 1992, which, inter alia, denied defendant’s cross-motion for summary judgment pursuant to CPLR 3212, reversed insofar as appealed from, on the law, without costs, defendant’s cross-motion is granted and the clerk is directed to enter judgment in favor of the defendant accordingly. ... However, where the proof on the issue of control presents no conflict in evidence the matter may properly be determined by the court as a matter of law (supra, at 988, citing Matter of Beach v Velzy, 238 NY 100).

Summary judgment is proper when the opposing party raises no triable issue of fact.

Schirripa Construction Inc. v. Frisone · filed 1993-12-27

The defendant has raised no triable issues of fact (see, CPLR 3212).

Section 3212 does not permit summary judgment when the opposing party raises a triable issue of fact.

State Savings v. Chestnut Construction Corp. · filed 1993-12-27

The respondent has raised a triable issue of fact (CPLR 3212).

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

Boston Concessions Group, Inc. v. Criterion Center Corp. · filed 1994-01-27

The IAS Court properly determined that summary judgment was precluded by triable issues of fact as to whether the defendant had exercised unauthorized dominion over the plaintiffs equipment to the exclusion of plaintiffs rights, as to whether the plaintiff or the defendant had breached the parties’ agreement, as to whether the plaintiffs or the defendant’s non-performance had frustrated fulfillment of the contract terms, as to whether the plaintiffs alleged improper acts excused the defendant from providing a written notice of termination pursuant to the parties’ Agreement, and with respect to an alleged waiver and/or ratification by the defendant.

CPLR 3212 requires denial of summary judgment when material factual disputes require a trial.

Boley v. Pavarini Construction Co. · filed 1994-02-01

The IAS Court properly determined that summary judgment dismissing the plaintiff’s first, and only remaining, cause of action for breach of contract was precluded by triable issues of fact as to what extent, if at all, plaintiff’s efforts were instrumental in the award to defendant Pavarini of two building contracts on the construction site and as to whether defendant Pavarini had frustrated the plaintiff’s ability to complete the contract.

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

Midlantic Commercial Leasing Corp. v. Sierra · filed 1994-02-22

We agree with the Supreme Court that no triable issues of fact exist (see, CPLR 3212).

Under CPLR 3212(b), summary judgment is denied when the evidence raises a triable issue of fact.

Munnich v. Bellmore Dog Grooming · filed 1994-02-22(b)

Thus, the County raised an issue of fact as to whether the sidewalk was modified for the benefit of Schaardt or Bellmore (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). The Supreme Court correctly found the existence of a triable issue of fact as to whether Schaardt or the County created the allegedly defective sidewalk condition. Accordingly, summary judgment was properly denied.

Section 3212(b) permits summary judgment when the record presents no triable issue of fact.

Carreras v. Lawrence Aviation Industries, Inc. · filed 1994-02-28(b)

The record presents no triable issues of fact with regard to the plaintiff’s status as a special employee of the defendant (see, CPLR 3212 [b]; Thompson v Grumman Aerospace Corp., 78 NY2d 553; Cameli v Pace Univ., 131 AD2d 419).

CPLR 3212 permits denial of summary judgment when the plaintiffs raise triable issues of fact.

Mendolia v. Saad · filed 1994-02-28

We agree with the Supreme Court that the plaintiffs have raised triable issues of fact, such as whether the drug manufactured by the appellant caused the injured plaintiff’s breast cancer, whether the treating physician’s use of the drug was reasonably foreseeable, and whether the warnings which accompanied the drug were adequate (see, Zuckerman v City of New York, 49 NY2d 557; Johnson v Johnson Chem. Co., 183 AD2d 64; Baker v St. Agnes Hosp., 70 AD2d 400; cf., Martin v Hacker, 83 NY2d 1). The Supreme Court therefore properly denied the appellant’s motion for summary judgment (see, CPLR 3212).

CPLR 3212 precludes summary judgment when the motion papers show questions of fact on the claims.

Iadarola v. Orthopedic Institute · filed 1994-03-07

The motion papers submitted on that motion indicate that questions of fact exist precluding summary judgment as to the plaintiffs’ causes of action against the appellant that are grounded in lack of informed consent (see, Public Health Law § 2805-d) and medical malpractice (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562).

Under CPLR 3212(b), a party opposing summary judgment must raise a triable issue of fact.

Schwartz v. Rosenberg · filed 1994-03-21(b)

The plaintiffs failed to raise a triable issue of fact (see, ... CPLR 3212 [b]) as to the existence of a "serious injury” within the meaning of Insurance Law § 5102 (d).

Section 3212 precludes summary judgment when a triable issue of fact remains.

A. Beecher Greenman Construction Corp. v. Long Island Rail Road · filed 1994-03-28

The Supreme Court found that the complaint stated a cause of action and that a triable issue of fact existed precluding summary judgment. We now affirm.

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

Continental Insurance v. Raines & Welsh & Sons Contractors, Inc. · filed 1994-04-11(b)

The defendant has failed to raise any triable issues of fact (see, CPLR 3212 [b]).

Section 3212(b) permits summary judgment when the plaintiff fails to raise a triable issue of fact.

Mahnke v. County of Westchester · filed 1994-04-11(b)

The plaintiff failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to the existence of a "special relationship” between the police and the decedent (see, Cuffy v City of New York, 69 NY2d 255, 260).

CPLR 3212(b) supports summary judgment when the opposing party fails to raise a triable issue of fact.

Pena v. City of New York · filed 1994-05-02(b)

The plaintiffs failed to raise a triable issue of fact as to whether the defendant M & S Shillman, Inc., was liable for the injuries sustained by the plaintiff Lorenzo Pena (see, CPLR 3212 [b]).

Section 3212 does not permit summary judgment when the evidence raises triable issues of fact.

Consolidated Edison Co. v. General Accident Insurance · filed 1994-05-17

Here, the factual circumstances presented on the record and by the evidence clearly raise triable issues as to whether an omission or mistake due to a scrivener’s error, resulting in an agreement imperfectly expressed, warrants the equitable remedy of reformation (Multiplan, Inc. v Federal Ins. Co., 179 AD2d 541; Hotel Credit Card Corp. v American Express Co., 13 AD2d 189).

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

Prudential-LMI Commercial Insurance v. Board of Managers, Elmwood Park Condominium II · filed 1994-06-06(b)

Triable issues of fact exist with regard to whether the defendant Board of Managers, Elmwood Park Condominium II satisfied the notice conditions set forth in the insurance policy issued to it by the plaintiff (see, CPLR 3212 [b]).

Summary judgment must be denied when a material issue of fact remains.

Symone T. v. Lieber · filed 1994-06-13(b)

Because an issue of fact exists in this regard, summary judgment was properly denied (see, CPLR 3212 [b]).

CPLR 3212(b) precludes summary judgment when triable issues of fact exist.

Kovalchuck v. McLoughlin · filed 1994-06-20(b)

We agree with the Supreme Court that the existence of triable issues of fact precludes the granting of summary judgment (see, CPLR 3212 [b]).

Under CPLR 3212(b), admissible evidence showing material questions of fact requires a trial rather than summary judgment.

American Credit Services, Inc. v. Jay Robinson Chrysler/Plymouth, Inc. · filed 1994-07-15(b)

The court properly denied, however, plaintiffs motion for summary judgment. Defendant submitted evidentiary proof in admissible form of material questions of fact sufficient to require a trial (see, Zuckerman v City of New York, 49 NY2d 557, 562; CPLR 3212 [b]).

CPLR 3212 permits summary judgment when the documents eliminate the asserted issues of fact.

Waterways Ltd. v. Barclays Bank PLC · filed 1994-08-25

We disagree with the IAS Court’s conclusion and accordingly reverse and grant summary judgment dismissal. ... Accordingly, Barclays’ "ambiguous” behavior subsequent to plaintiff’s default was entirely consistent with the documents and is insufficient to create an issue of fact.

CPLR 3212 does not permit summary judgment when the movant fails to establish that no material factual issue requires trial.

Candela v. Port Motors, Inc. · filed 1994-10-03

Whether the Lincoln Town Car purchased by the plaintiff was in fact a stolen vehicle is thus a material issue to be decided at trial. Port failed to adduce proof sufficient to warrant the conclusion that, as a matter of law, the subject vehicle had not been stolen, as alleged in the plaintiffs complaint. The Supreme Court therefore erred in granting summary judgment to Port (see, CPLR 3212).

Section 3212 requires denial of summary judgment when an opposing expert affidavit raises issues of fact.

Carrasquillo v. Rosencrans · filed 1994-10-03

After the plaintiffs commenced the instant action and issue was joined, the defendants moved for summary judgment pursuant to CPLR 3212. ... The Supreme Court properly cited the affidavit in holding that issues of fact existed which mandated the denial of the defendants’ motion.

Section 3212 requires denial of summary judgment when disputed facts about the parties’ contractual intent must be resolved at trial.

Yanuck v. Simon Paston & Sons Agency, Inc. · filed 1994-11-03

The IAS Court properly determined that the parties’ respective motions for summary judgment were precluded by triable issues of fact with respect to whether the parties intended their Sales Agreement to extinguish plaintiffs accrued claims for profit sharing and participation income under the prior Joint Venture Agreement.

CPLR 3212(b) requires denial of summary judgment when the plaintiffs raise triable issues of fact.

Costa v. Schnabel · filed 1994-11-07(b)

The plaintiffs raised triable issues of fact as to whether the appellant was negligent in its prior repair of a traffic control device and as to whether the defect in the device was the proximate cause of the accident which gave rise to the plaintiffs’ claims (see, CPLR 3212 [b]).

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

Lu v. Rosa · filed 1994-11-28(b)

The plaintiff failed to raise any triable issues of fact as to whether he satisfied all the conditions precedent to cancellation of the contract of sale and entitlement to recovery of the down payment (see, CPLR 3212 [b]).

Under section 3212(b), summary judgment is appropriate when the opposing party fails to raise a triable issue of fact.

Altchek v. DiGennaro · filed 1994-12-12(b)

The plaintiff failed to raise a triable issue of fact as to whether the defendants Iris DiGennaro, David Teich, and Michael Beim entered into an enforceable agreement to indemnify him for the debt he owed to the United Jersey Bank (see, CPLR 3212 [b]).

Section 3212 requires denial of summary judgment when a triable issue of fact remains as to whether a party accepted a contract.

Mindich Developers, Inc. v. Milstein · filed 1995-02-08

Consequently, the court concludes that on this record the failure to have defendant’s (and proposed defendant’s) signature on the contract is without merit and a triable issue of fact exists as to whether the contract was accepted.

CPLR 3212 bars summary judgment when material factual issues remain about an insured’s alleged failure to cooperate with an insurer.

Baerga v. Transtate Insurance · filed 1995-03-14

The IAS Court properly determined that summary judgment in defendant’s favor was barred by material triable issues of fact as to whether the plaintiffs failure to cooperate with the defendant in the investigation of the insurance claim, based upon plaintiffs failure to appear for a continued examination under oath, was a willful disregard of plaintiffs policy obligations, or was, in fact, due to the deteriorating physical and mental condition and subsequent suspension from the practice of law of plaintiffs former counsel (Abudayeh v Fair Plan Ins. Co., 105 AD2d 764, 766; Rosch v Agway Ins. Co., 86 AD2d 929).

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

Hahn v. J. Zadrozny, Inc. · filed 1995-03-20(b)

The plaintiff raised a triable issue of fact as to whether he sustained a serious injury as defined by Insurance Law § 5102 (d) (see, CPLR 3212 [b]).

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

Moeller v. Astor Chocolate Corp. · filed 1995-04-03

We conclude, however, that the plaintiff’s motion for summary judgment in his favor was properly denied since triable issues of fact exist, including whether the plaintiff’s termination from his employment was without cause (CPLR 3212).

Section 3212(b) requires denial of summary judgment when the opposing party raises a triable issue of fact.

Greer v. Metropolitan Suburban Bus Authority · filed 1995-05-01(b)

The plaintiff raised a triable issue of fact as to whether she sustained a serious injury as defined by Insurance Law § 5102 (d) (see, CPLR 3212 [b]).

Section 3212 requires courts to identify factual issues, not resolve them, and summary judgment should be denied when a material issue is arguable.

National Indemnity Co. v. Ryder Truck Rental, Inc. · filed 1995-05-01(b)

The underlying rationale is that the granting of summary judgment relief is the functional equivalent of a trial and operates to deprive a party of his day in court. Thus, such relief is to be sparingly granted, especially, as noted, since the key to the procedure is issue finding, not issue determination.

Section 3212(b) requires denial of summary judgment when the moving party’s evidence leaves a triable issue of fact.

F & M Bus Van Corp. v. Arias · filed 1995-05-08(b)

Because the evidence submitted by the defendant did not exclude the possibility that any release entered into by the parties related only to the plaintiff’s claim for property damage, it was error for the Supreme Court to conclude that no triable issues of fact existed with regard to the plaintiff’s claim for lost income (see, CPLR 3212 [b]).

Summary judgment should be denied when the record raises a material triable issue of fact.

Bethel v. New York City Transit Authority · filed 1995-05-11

Summary judgment should also be denied because there is a material triable issue of fact, raised by NYCTA’s maintenance records, as to whether defendant NYCTA, rather than MABSTOA, maintained and/or repaired the defective passenger seat on the bus that precipitated the plaintiffs injuries.

Summary judgment is precluded when triable issues of fact remain.

Rufino v. Colella · filed 1995-05-11

In this action brought to recover for injuries allegedly sustained by plaintiff when she fell on a sidewalk, the IAS Court properly determined that summary judgment in defendant’s favor was precluded by triable issues of fact as to, inter alia, the extent of the defendant’s maintenance of the sidewalk area where the plaintiff was allegedly injured and whether the defendant created the defect in the sidewalk which caused the accident (see, Brady v Maloney, 161 AD2d 879).

CPLR 3212(b) precludes summary judgment when questions of fact remain.

Adelman v. Rackis · filed 1995-02-14(b)

Finally, we conclude that there are questions of fact which preclude the granting of summary judgment to the plaintiff on any of his causes of action (see generally, CPLR 3212 [b]).

Section 3212(b) permits summary judgment when the opposing submissions raise no factual issue requiring trial and the movant is entitled to judgment as a matter of law.

Grumet v. Cuomo · filed 1995-03-08(b)

As the submissions of the plaintiffs fail to raise any factual issues that would call into question the constitutionality of the challenged statute, the court finds chapter 241 constitutional as a matter of law and grants summary judgment in favor of all defendants.

Section 3212 requires denial of summary judgment when an issue of fact exists as to foreseeability.

McDonald v. Ross · filed 1995-03-13

We accordingly conclude that an issue of fact exists with respect to whether the occurrence was foreseeable, and summary judgment was therefore properly denied.

Section 3212 requires denial of summary judgment when questions of fact remain.

Oakley v. Longview Owners, Inc. · filed 1995-05-10

The cross motion for summary judgment on the first cause of action for breach of the proprietary lease is denied as questions of fact exist.

Section 3212(b) permits summary judgment when the opposing party fails to offer sufficient evidence to raise a triable issue of fact.

Evans v. Lawrence Arms Associates · filed 1995-05-30(b)

Under the circumstances, Evans failed to offer sufficient evidence that he relied on Simonds’ representations to support his claim of fraudulent inducement and to raise a triable issue of fact. Thus, the court properly granted summary judgment in favor of the defendants (see, CPLR 3212 [b]; Citibank v Plapinger, 66 NY2d 90, 95; see also, Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57, 61; Chemical Bank v Friedman & Shaftan, 161 AD2d 534, 536-537).

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

Rosen v. Town of Oyster Bay · filed 1995-06-05(b)

There is a triable issue of fact regarding whether the general release executed by the parties on July 5, 1991, bars the plaintiff from commencing this action to recover damages for injury to property that occurred on August 19,1991 (see, CPLR 3212 [b]).

Section 3212 does not permit summary judgment when sharply disputed factual issues remain.

Glynwill Investments, N.V. v. Shearson Lehman Hutton, Inc. · filed 1995-06-13

Because there are sharply disputed factual issues, summary judgment is inappropriate.

Section 3212 permits summary judgment when the facts in dispute are immaterial to the claim.

Harfenes v. Sea Gate Ass'n · filed 1995-08-10

In order for the plaintiffs to defeat the defendants’ motion for summary judgment there must be a material issue of fact in dispute. Although the parties clearly do not agree on several issues of fact, none of them is relevant to the question of whether the plaintiffs are entitled to relief under the Civil Rights Act. Accordingly, the defendants’ motion for summary judgment is granted.

Section 3212 precludes summary judgment when triable issues of fact remain and discovery is needed.

Di Roma v. Tripodi Eyewear International, Inc. · filed 1995-09-26

The IAS Court properly determined that the parties’ respective motions for summary judgment were precluded by triable issues of fact, requiring discovery, with respect to the plaintiffs reasons for its admitted ten year delay in pursuing the action, whether abandonment, estoppel or waiver are available as viable defenses to the plaintiffs delayed claim, and with respect to the extent of prejudice, if any, to the defendants by reason of the delay (Ellis v Allstate Ins. Co., 151 AD2d 543, 544).

Section 3212 precludes summary judgment when a factual dispute remains about whether allegedly defamatory statements were made with malice or ill will.

Herlihy v. Metropolitan Museum of Art · filed 1995-10-10

In view of the foregoing, we conclude, as did the IAS Court, that an issue of fact exists concerning whether defendants’ allegations were made with malice or ill will, thereby precluding summary judgment (see generally, Liberman v Gelstein, supra; Toker v Poliak, supra; Vacca v General Elec. Credit Corp., 88 AD2d 740; Scott v Cooper, 215 AD2d 368).

Section 3212(b) precludes summary judgment when the opposing party shows facts sufficient to require a trial of a factual issue.

Fradera v. 124 Realty Co. · filed 1995-10-10(b)

Summary judgment is a drastic remedy and should not be granted where the opposing party is able to "show facts sufficient to require a trial of any issue of fact”

Under CPLR 3212(b), summary judgment is proper when the opposing party fails to raise a triable issue of fact.

Republic Bank of Savings v. Stein · filed 1995-10-23(b)

We agree with the Supreme Court’s conclusion that the ap-. pellants failed to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562). The Supreme Court therefore properly granted the plaintiffs motion for summary judgment (see, CPLR 3212 [b]).