N.Y. C.P.L.R. § 3212

Under CPLR 3212(b), a triable issue of fact prevents summary judgment.

Doxtator v. Doxtator · filed 1995-11-06(b)

We further conclude, however, that the provision in the so-called stipulation pursuant to which Doxtator consented to the entry and service upon his employer of a wage deduction order deducting, inter alia, one-third of his gross income during the period of time from November 9, 1987 to March 1, 1993, raises a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff was entitled to a one-third share of the payment Doxtator received pursuant to the Individual Transition Option Program II exit incentive plan.

CPLR 3212(b) requires denial of summary judgment when factual issues remain about the value of claimed services.

Jacobs v. Cirnigliaro · filed 1995-11-06(b)

Thus, the branch of the plaintiff’s cross motion which was for summary judgment on the causes of action to recover for those services was properly denied (see, CPLR 3212 [b]).

Questions of fact raised by opposing motion papers preclude summary judgment.

Pierce v. Moreau · filed 1995-11-09(b)

Here, we conclude that arguable questions of fact raised by the parties’ opposing motion papers are sufficient to avoid the drastic remedy of summary judgment (see, CPLR 3212 [b]).

Section 3212 precludes summary judgment when factual issues remain about whether a party breached a duty of care.

Grossman v. Franklin Hospital Medical Center · filed 1995-12-04

Accepting the truth of the defendants’ allegations against the third-party defendants (see, Citibank v Dutka, 74 AD2d 520), there are clear issues of fact as to whether the third-party defendants breached a duty of care owed to the decedent (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557).

Section 3212 requires denial of summary judgment when questions of fact remain about allegations supporting a cause of action.

Witter v. City of New York · filed 1995-07-10

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 appellants’ motion (see, Dursi v New York City Tr. Auth., 198 AD2d 470).

Section 3212(b) precludes summary judgment when an issue of fact remains.

Reiff v. Shifrel · filed 1995-07-31(b)

We therefore conclude that issues of fact exist as to whether Shifrel breached his fiduciary duty to the plaintiff (see, CPLR 3212 [b]; St. James Plaza v Notey, 95 AD2d 804).

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

Clifford Broman & Son, Inc. v. Town of Babylon · filed 1995-12-29(b)

Since a triable issue of fact exists as to whether the subcontractor was owed any money at the time the plaintiff’s lien was filed, the plaintiff’s motion for summary judgment was properly denied (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) precludes summary judgment when a material issue of fact remains.

Productive Recycling, Inc. v. Town of Smithtown · filed 1995-12-29(b)

Neither the plaintiff nor the defendants is entitled to summary judgment. There is an issue of fact regarding whether the plaintiff materially breached or otherwise rendered unperformable its contract to recycle the defendant town’s yard waste (see generally, CPLR 3212 [b]).

Section 3212 does not allow summary judgment when material issues of fact remain or the movant is not entitled to judgment as a matter of law.

Fuoco v. County of Nassau · filed 1996-01-29

The Supreme Court properly determined that there were issues of fact as to whether the design, construction, and maintenance of the County-owned road proximately caused the accident and that under the circumstances of this case, the County was not entitled to qualified immunity for its highway planning decisions as a matter of law (see, Tomassi v Union, 46 NY2d 91, 97; Kiamie v Town of Huntington, 193 AD2d 584; Giske v State of New York, 191 AD2d 675; Ames v City of New York, 177 AD2d 528, 533; Stanford v State of New York, 167 AD2d 381, 382; Hearn v State of New York, 157 AD2d 883, 885).

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

DiGiaimo v. City of White Plains · filed 1996-02-05(b)

We agree with the Supreme Court that triable issues of fact exist (see, CPLR 3212 [b]) as to whether the third-party defendant Playfield Industries, Inc., is a "mere continuation” of All Pro Athletic Surfaces such that it may be held liable for the negligent acts alleged in the plaintiff’s pleadings (see, Schumacher v Richards Schear Co., 59 NY2d 239).

Section 3212(b) requires a trial when material issues of fact remain.

Furino v. Corinthian Garage Corp. · filed 1996-02-05(b)

We agree with the Supreme Court that there are material issues of fact which require a trial (see, CPLR 3212 [b]).

Section 3212(b) bars summary judgment when a triable issue of fact exists.

Zisovich v. Aetna Casualty & Surety Co. · filed 1996-02-05(b)

We agree with the Supreme Court that triable issues of fact exist as to whether the defendant Edwin Shafier, an agent of Aetna Casualty & Surety Company (hereinafter Aetna), sent Aetna a change order to insure the plaintiff s 1985 Oldsmobile (see, CPLR 3212 [b]).

CPLR 3212 does not permit summary judgment when material questions of fact prevent a determination as a matter of law.

Rabin v. Hirshfield · filed 1996-01-08

Material questions of fact preclude a determination of the validity of the parties’ fee-splitting arrangement and the nonsolicitation agreement as a matter of law (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557).

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

Agar v. Marine Petroleum Transportation Corp. · filed 1996-03-25(b)

We agree with the Supreme Court that the plaintiff failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendant Marine Petroleum Transportation Corp. (hereinafter Marine) knew of the retainer agreement between the defendant Martin Harrison Clancy and the plaintiff and, thus, as to whether Marine induced the breach of that agreement (see, Kronos, Inc. v AVX Corp., 81 NY2d 90, 94; Israel v Wood Dolson Co., 1 NY2d 116).

Section 3212(b) requires a trial when material issues of fact preclude summary judgment.

Village of Scarsdale v. Carroll · filed 1996-04-15(b)

We agree with the Supreme Court that there are material issues of fact which require a trial (see, CPLR 3212 [b]).

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

Amorillo v. James A. Ziegler, Inc. · filed 1996-04-29(b)

The plaintiffs have failed to raise any triable issues of fact (see, CPLR 3212 [b]) as to whether the plaintiff Sara Amorillo sustained a serious injury as defined by Insurance Law § 5102 (d).

Summary judgment must be denied when the opposing party’s evidence raises a triable issue of fact.

McDonald's Corp. v. State Diner, Inc. · filed 1996-05-13(b)

Although it is undisputed that the plaintiff informed the lessor of its intent to exercise its right to purchase the property in a letter dated August 4, 1994, the evidence submitted by the defendants was sufficient to raise a triable issue of fact as to the term of the lease, and whether the plaintiff exercised its option prior to the expiration of the lease. The Supreme Court therefore properly denied the plaintiff’s motion for summary judgment (see, CPLR 3212 [b]; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341; Gaither v Saga Corp., 203 AD2d 239, 240).

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

Martin v. Luther · filed 1996-05-16(b)

Here, since plaintiffs proof in opposition to defendant’s motion raises triable issues of fact as to defendant’s alleged recklessness, we conclude that defendant’s motion for summary judgment was properly denied (see, CPLR 3212 [b]).

An affidavit raising a material question of fact about damages precludes summary judgment on damages.

Kryten Iron Works, Inc. v. Ultra-Tech Fabricators, Inc. · filed 1996-06-03(b)

This affidavit was sufficient to raise a question of fact as to the issue of damages and, accordingly, summary judgment should not have been granted with respect thereto (see, CPLR 3212 [b] ).

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

Torres v. Young · filed 1996-06-03(b)

The evidence submitted by the appellant in support of his motion for summary judgment, including the medical report prepared by Dr. Lawrence Shields, made out a prima facie case that the infant plaintiff Jimmy-Lee Muniz had not sustained a serious injury as defined by Insurance Law § 5102 (d). The evidence submitted by the plaintiffs, including the affirmation of Dr. Donald Goldman, which indicated that the contusion which the infant plaintiff had sustained had now "resolved”, failed to raise a triable issue of fact (CPLR 3212 [b]).

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

Alessi v. Zapolsky · filed 1996-06-17(b)

The plaintiffs have failed to raise a triable issue of fact ... as to whether the defendants created the defect, whether the defect arose because of the defendants’ special use of the sidewalk as a driveway, or whether the defendant breached a statutory duty to maintain the sidewalk.

CPLR 3212(b) requires denial of summary judgment when material issues of fact require a trial.

Hafter v. City of New York · filed 1996-07-01(b)

The Supreme Court properly denied the appellants’ motion for summary judgment. There are material issues of fact which require a trial (see, CPLR 3212 [b]).

CPLR 3212 permits summary judgment only when no genuine triable issue of fact exists.

Bouhayer v. Georgalis · filed 1996-07-08

In order to grant summary judgment, it must clearly appear that there are no genuine triable issues of fact.

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

Longo v. Woodlawn Veterans Mutual Housing Co. · filed 1996-03-21(b)

Questions of fact are present sufficient to defeat summary judgment (CPLR 3212 [b]; see, Menzel v Plotnick, 202 AD2d 558, 559).

Under CPLR 3212, conflicting accounts of an accident can create a question of fact that prevents summary judgment on liability.

Goodrich v. Watermill Townhouses, Inc. · filed 1996-04-19

In conclusion, this court finds that questions of fact exist regarding the manner in which the accident took place. Plaintiff’s motion for summary judgment on the issue of liability is therefore denied.

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

Hores v. Sargent · filed 1996-08-05(b)

Furthermore, viewing the evidence in the light most favorable to the plaintiff (see, Forte v Franklin Gen. Hosp., 185 AD2d 914), we find that material issues of fact exist (see, CPLR 3212 *713[b]) as to whether NCC breached its duty to provide adequate supervision, and if so, whether that negligence was a proximate cause of the plaintiffs injuries.

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

Hores v. Sargent · filed 1996-08-05(b)

We agree with the Supreme Court that material issues of fact exist (see, CPLR 3212 [b]) as to whether the truck’s brakes were faulty at the time of the accident, and if so, whether the third-party defendant’s failure to tell the third-party plaintiffs of its inability to inspect the truck’s brakes was a proximate cause of the plaintiff’s injuries.

Section 3212 requires denial of summary judgment when material issues of fact remain for trial.

Zucker v. Hirschl & Adler Galleries, Inc. · filed 1996-09-17

The Gallery’s cross motion for summary judgment on its cause of action for moneys loaned to plaintiff (in the sum of $36,321.78) and for unpaid commissions allegedly due to the Gallery under the terms of the Sales Agreement (in the sum of at least $75,000) is denied due to the existence of triable issues of fact.

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

Hanover Insurance v. Ronnenberg, Hurley & Nash, Inc. · filed 1996-10-21(b)

The defendant has failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to the amount it owed the plaintiff in insurance premiums pursuant to the terms of the agency agreement into which the parties entered.

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

P.J.V. Transport, Inc. v. Long Beach Recycling & Recovery Corp. · filed 1996-10-21(b)

Inasmuch as PJV failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether ERD, upon, inter alia, taking control of the operation of the facility, assumed the debts or obligations of LBRRC, the Supreme Court erred in denying that branch of the cross motion of ERD which was for summary judgment dismissing the complaint insofar as asserted against it.

CPLR 3212(b) requires a party opposing summary judgment to raise a triable issue of fact.

Tuminelli v. First Unum Life Insurance · filed 1996-10-21(b)

Accordingly, the defendant has failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Under CPLR 3212(b), a party opposing summary judgment must raise a triable issue of fact; an expert affidavit that fails to address the claim does not do so.

Town of Hempstead v. Lizza Industries, Inc. · filed 1996-10-28(b)

The defendant failed to raise a triable issue of fact (see, CPLR 3212 [b]). The affidavit prepared by the defendant’s engineering expert Robert Samson failed to address the plaintiffs cause of action sounding in breach of contract.

CPLR 3212(b) requires a party opposing summary judgment to raise a triable issue of fact.

Boddie v. City of New Rochelle · filed 1996-11-04(b)

The plaintiff has failed to raise any triable issues of fact (see, CPLR 3212 [b]) as to whether the municipal defendant was given prior written notice of the alleged hazardous condition, as required by the City Charter of the City of New Rochelle § 127 (A), or whether an exception to that requirement existed in this case.

Section 3212(b) permits summary judgment when the opposing evidence does not raise a triable issue of fact.

Maxwell v. Land-Saunders · filed 1996-11-04(b)

This evidence did not raise a triable issue of fact (CPLR 3212 [b]) and was insufficient to defeat the motion for summary judgment.

Under CPLR 3212(b), evidence opposing summary judgment must raise a triable issue of fact; a physician’s affirmation that gives no objective evidence of the extent or duration of an alleged limitation does not suffice.

Rodriguez v. Tsui · filed 1996-11-12(b)

The only medical evidence submitted by the plaintiff in opposition to the defendant’s motion for summary judgment was a physician’s affirmation which failed to provide objective evidence of the extent or degree of the alleged physical limitation and its duration. This evidence thus failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff suffered a significant limitation of the use of a body function or system (see, Insurance Law § 5102 [d]; see, Beckett v Conte, 176 AD2d 774).

Under CPLR 3212, summary judgment should be denied when a triable factual issue is arguable or debatable.

International Customs Associates, Inc. v. Bristol-Myers Squibb Co. · filed 1996-11-14

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231) or where the factual issue is arguable or debatable (Sill-man v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Upon our review of the record, we find that factual triable issues exist regarding, inter alia, whether the services performed by the plaintiff constituted the practice of law in this State as defined by Judiciary Law § 478 so as to preclude, as a matter of law, plaintiff’s claims for compensation pursuant to the parties’ contract.

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

Reale v. Superlease Rent-a-Car, Inc. · filed 1996-11-25(b)

Triable issues of fact exist (see, CPLR 3212 [b]) as to whether the appellant is liable for the injuries sustained by the plaintiff.

CPLR 3212 precludes summary judgment when questions of fact remain.

Cardenas v.Curtain · filed 1996-08-05

There are questions of fact which preclude summary judgment (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Vehicle and Traffic Law § 1104 [b] [2]; Campbell v City of Elmira, 84 NY2d 505; Klayman v City of New York, 130 AD2d 551; cf., Martinez v City of New York, 213 AD2d 704).

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

Miter Realty Corp. v. AT&T Communications, Inc. · filed 1996-11-08

With respect to that claim, there are triable questions of fact precluding summary judgment.

Summary judgment under CPLR 3212 is improper when a factual question remains about whether a continuous professional relationship tolled the limitations period.

Fred Smith Plumbing and Heating Co. v. Christensen · filed 1996-11-19

Order, Supreme Court, New York County (Elliott Wilk, J.), entered May 7, 1996, which granted defendants’ motion pursuant to CPLR 3212 for partial summary judgment dismissing the first, second, fourth and fifth causes of action of plaintiff’s complaint, unanimously reversed, on the law, without costs, and defendants’ motion is denied and said cause of action reinstated. ... Upon our review of the record as developed thus far, we find that, at the very least, questions of fact exist as to whether the services rendered to plaintiff by defendant, which formed the basis of the dismissed causes of action, constituted a continuous relationship which ended with plaintiff’s discharge of defendants (compare, Hall & Co. v Steiner & Mondore, supra, and Zwecker v Kulberg, 209 AD2d 514, 515 [continuous representation rule applied to repeated use of the same improper deduction in successive tax returns to find malpractice claim timely brought]).

Section 3212 permits denial of summary judgment when unresolved factual questions remain about a party’s possible contribution to the alleged defects.

Mertsaris v. Paolo & Sons Construction Corp. · filed 1996-09-16

There are unresolved questions regarding whether the appellant could have contributed to the existence of the construction defects which the homeowners discovered one month after moving into their home. Thus, it was appropriate for the court to deny summary judgment in favor of the appellant (see, CPLR 3212; Moskowitz v Garlock, 23 AD2d 943).

Under CPLR 3212(b), evidence raising issues of fact precludes summary judgment.

Prager v. Grand Union Co. · filed 1996-11-25(b)

The plaintiffs’ evidence, including Emilia Prager’s affidavit, raises issues of fact which preclude the granting of summary judgment (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Gordon v American Museum of Natural History, supra).

Under CPLR 3212(b), testimony that raises a triable issue of fact can prevent summary judgment.

Krispin v. Maintech Corp. · filed 1996-12-02(b)

The testimony adduced at an examination before trial of Martin Holden, the defendant’s site manager, raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendant had notice of the defective condition.

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

In re the Liquidation of Union Indemnity Insurance · filed 1996-12-12

Thus, at the very least, a triable issue of fact exists as to whether the parties to the assumption agreement, which did not include LSR, intended to release LSR and the surety from all obligations.

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

Agora International Ltd. v. Royal Insurance · filed 1996-12-23(b)

The plaintiff has failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendants demanded a sworn statement of proof of loss and furnished it with a suitable blank form or forms (see, Insurance Law § 3407).

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

Amanatides v. City of New York · filed 1996-12-23(b)

The plaintiff has failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendant was responsible for maintaining the site of the accident and thus as to whether the alleged negligence on the part of the defendant was a proximate cause of the plaintiff’s injuries.

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

Martucci v. Long Island Railroad · filed 1996-12-23(b)

We agree with the trial court that there are issues of fact which preclude the granting of summary judgment (see, CPLR 3212 [b]).

Section 3212(b) calls for denial of summary judgment when the parties’ submissions raise triable issues of fact.

Jewell v. Cumberland Farms, Inc. · filed 1997-01-13(b)

The parties’ submissions raised triable issues of fact (see, CPLR 3212 [b]) both as to whether the defendant sold beer directly (see, Sherman v Robinson, 80 NY2d 483, 485) to the 19-year-old operator of the vehicle involved in the accident which resulted in the death of James E. Jewell, and as to whether the deceased procured or caused the operator’s intoxication (see, Prunty v Keltie’s Bum Steer, 163 AD2d 595).

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

Smith v. Weinstein · filed 1997-02-10(b)

This evidence raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendant Jamie Ann Weinstein was in fact operating the vehicle at the time of the occurrence, as the plaintiffs contended in their complaint and bill of particulars.

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

Vallejo v. Yorkshire Apartments, Inc. · filed 1997-02-10(b)

The respondents have likewise failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the appellants placed the glass table top on the sidewalk.

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

Copeman v. Moran · filed 1997-02-18(b)

Regardless of the precise manner in which Annita Jaklitsch sustained her injuries, we conclude that there exists a triable issue of fact (see, CPLR 3212 [b]) as to whether the appellant’s loss of control of her vehicle established negligence on her part.

Under CPLR 3212, a triable issue of fact about constructive notice of a hazardous condition precludes summary judgment.

Slomko v. Staten Island Mall · filed 1997-03-10

Triable issues of fact exist as to whether the defendant had constructive notice of the alleged hazardous condition which the injured plaintiff, Wendy Slomko, claims caused her to slip and fall (see, CPLR 3212; Gordon v American Museum of Natural History, 67 NY2d 836).

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

Kraemer v. Henning · filed 1997-03-24

This raised a triable issue of fact as to whether the injured plaintiff sustained a "significant limitation” of use of a body function or system (see, Beckett v Conte, 176 AD2d 774) constituting a serious injury as defined by Insurance Law § 5102 (d).

CPLR 3212(b) requires denial of summary judgment when a material issue of fact remains for trial.

DGM Partners v. Assessor of Rye · filed 1997-03-24(b)

The court therefore correctly denied the appellants’ motion for summary judgment as the question of value for tax assessment purposes remained a material, triable issue of fact (see, CPLR 3212 [b]).

Section 3212 requires denial of summary judgment when the opposing party’s evidence raises a material question of fact.

O'Connor-Miele v. Barhite & Holzinger, Inc. · filed 1996-12-12

Applying that standard to the matter herein, we find that the evidence presented by plaintiff created a material question of fact which precludes summary judgment.

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

P.T. Bank Central Asia v. Chinese American Bank · filed 1997-02-11(b)

To sustain the award of summary judgment to plaintiff Bank Central Asia, it is necessary to eliminate any factual question with respect to knowledge its officer might have possessed regarding the contents of the senior creditor’s financing statement (CPLR 3212 [b]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Wiener v Ga-Ro Die Cutting, 104 AD2d 331, 333, affd 65 NY2d 732).

Under CPLR 3212(b), evidence opposing summary judgment can defeat the motion by raising a triable issue of fact.

Carucci v. Tzimopoulos · filed 1997-04-21(b)

Although the defendants made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d), the evidence submitted by the plaintiff in opposition to the motion, consisting, ... Dr. Raphael Cilento’s medical affidavit, raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff met the statutory threshold.

CPLR 3212 does not permit summary judgment on a claim when expert affidavits raise triable issues of fact.

Vogel v. Herk Elevator Co. · filed 1997-04-21

In addition, the affidavits submitted by the parties’ experts raised triable issues of fact on the cause of action for negligent maintenance (see, CPLR 3212).

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

Modica v. Shoprite Supermarkets, Inc. · filed 1997-04-28(b)

The foregoing evidence raised ...a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendants had constructive notice of the hazardous condition.

Under CPLR 3212(b), medical evidence submitted in opposition to summary judgment can raise a triable issue of fact about whether a plaintiff sustained a serious injury.

Pratt v. Wright · filed 1997-05-05(b)

We agree with the Supreme Court that the medical evidence submitted by the plaintiff in opposition to the motion, consisting of Dr. Kathleen Watson’s affidavit, raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff suffered a "significant limitation” and thus sustained a serious injury, as defined by Insurance Law § 5102 (d) (see, Beckett v Conte, 176 AD2d 774).

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

Joseph v. Automotive Rentals Inc. · filed 1997-05-19(b)

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

Section 3212 requires denial of summary judgment when opposing evidence raises a triable issue of fact, even if the movant initially shows entitlement to judgment.

Finch, Pruyn & Co. v. M. Wilson Control Services, Inc. · filed 1997-05-22

In our view, plaintiff’s proof was sufficient to entitle it to summary judgment, as a matter of law, on the issue of defendants’ liability for breach of their contractual duties to comply with pertinent safety regulations, to provide approved protection for plaintiff’s property against damage and loss, and to perform work without affecting plaintiff’s daily operations (see, CPLR 3212; see also, Zuckerman v City of New York, 49 NY2d 557, 562). ... We find this evidence sufficient to raise a triable issue ... of whether plaintiff, despite the language of the specifications, retained some responsibility for the project’s safety and, therefore, conclude that Supreme Court properly denied plaintiffs motion.

Section 3212(b) bars summary judgment when the plaintiff raises a triable issue of fact about whether she sustained a serious injury.

Bronson v. McMillan · filed 1997-05-27(b)

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

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

Anderson v. Rehabilitation Programs Foundation, Inc. · filed 1997-06-16(b)

The plaintiff has failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendants’ alleged negligence proximately caused his injuries (see, McIntyre v Beaver Dam Winter Sports Club, 163 AD2d 277).

CPLR 3212(b) requires denial of summary judgment when the evidence raises an issue of fact.

Lombardi v. Hochfeld · filed 1997-06-30(b)

The affirmation provided objective evidence of the extent or degree of the limitation in the plaintiff’s cervical spine and left shoulder and thus raised an issue of fact (see, CPLR 3212 [b]) as to whether she sustained "a significant limitation of use of a body function or system” (Insurance Law § 5102 [d]; see, Beckett v Conte, 176 AD2d 774).

Section 3212(b) precludes summary judgment when a genuine issue of fact remains about a petitioner's standing.

LaBarbera v. D'Amico · filed 1997-06-23(b)

The dismissal of the proceeding was inappropriate in the presence of a genuine issue of fact regarding the threshold matter of standing (see, CPLR 3212 [b]) and a hearing must be held thereon.

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

Figueroa v. Mishko · filed 1997-09-08(b)

The Supreme Court properly denied Mishko’s cross motion for summary judgment, since there were material issues of fact as to whether Mishko negligently made the left turn onto Rabro Drive and whether her turn was a proximate cause of the decedent’s accident (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

Under CPLR 3212(b), medical evidence submitted in opposition to summary judgment can raise a triable issue of fact.

Hextall v. Pierre · filed 1997-09-15(b)

The medical evidence submitted by the plaintiff in opposition to the defendant’s motion for summary judgment raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff sustained a serious injury as defined by Insurance Law § 5102 (d).

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

Krampen v. Foster · filed 1997-09-30(b)

In opposition, plaintiffs submitted evidence sufficient to raise a triable issue of fact whether Leszczynski possessed “the requisite knowledge” that he was selling beer to Daly for consumption by Drzal (Sherman v Robinson, 80 NY2d 483, 488; see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

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

Broad v. Patico Corp. · filed 1997-10-06

The school was entitled to summary judgment because no triable issue of fact was presented as to the school’s liability for this spontaneous and unanticipated act (see, e.g., Hauser v North Rockland Cent. School Dist. No. 1, supra).

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

Curry v. Velez · filed 1997-10-06(b)

We thus conclude that she has failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see, Letellier v Walker, 222 AD2d 658; Insurance Law § 5102 [d]).

Section 3212(b) requires denial of summary judgment when triable issues of fact require a trial.

Medina v. Liberty Mutual Fire Insurance · filed 1997-10-14(b)

We agree that the determination of whether the loss sustained to the plaintiffs’ home may be characterized as a “collapse” occasioned by “hidden decay” (a covered loss) or whether it is more properly classified as “settling” (an excluded peril), presents triable issues of fact necessitating a trial (see, CPLR 3212 [b]; see, e.g., Phillips v Kantor & Co., 31 NY2d 307, 311).

CPLR 3212(b) permits denial of summary judgment when the opposing evidence raises a triable issue of fact.

McDowell v. Lin · filed 1997-10-20(b)

We agree with the Supreme Court that the medical evidence which the plaintiff submitted in opposition to the motion for summary judgment 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(b) precludes summary judgment when the evidence raises a triable issue of fact.

Fitzpatrick v. Spottiswood · filed 1997-10-27(b)

Moreover, the physician’s affidavit, which the plaintiff submitted upon renewal, provided objective evidence of the extent or degree of the limitation of movement of the plaintiffs cervical spine and its duration (see, Beckett v Conte, 176 AD2d 774), thus raising a triable issue of fact (see, CPLR 3212 [b]) as to the existence of a serious injury as defined by Insurance Law § 5102 (d).

Summary judgment must be denied if the opposing party offers admissible evidence sufficient to require a trial on a factual issue.

General Electric Capital Corp. v. National Tractor Trailer School, Inc. · filed 1997-11-17

The court will deny summary judgment if the opposing party produces evidentiary proof in admissible form sufficient to require a trial of any issue of fact.

CPLR 3212(b) requires denial of summary judgment when the opposing party raises triable issues of fact.

Alleyne v. City of New York · filed 1997-11-24(b)

The Supreme Court properly denied the appellant’s motion for summary judgment inasmuch as the City has raised triable issues of fact as to whether the appellant properly removed the lead paint violations, and, if not, whether its failure to do so contributed to the continuation of the allegedly hazardous conditions (see, CPLR 3212 [b]).

Under CPLR 3212(b), a triable issue of fact as to negligence prevents summary judgment dismissing that claim.

Delarosa v. Vallejo · filed 1997-11-24(b)

The plaintiffs have raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the accident was caused by the appellants’ negligence.

CPLR 3212(b) precludes summary judgment on timeliness when a factual dispute remains over when the claim accrued.

Panepinto v. New York Life Insurance · filed 1997-11-25(b)

Since there is an issue of fact as to whether plaintiffs total disability continues or terminated in 1986 as New York Life asserts, summary judgment based on the untimeliness of plaintiff’s claims is precluded (see, CPLR 3212 [b]; Andre v Pomeroy, 35 NY2d 361, 364).

Under CPLR 3212, a shadowy semblance of a factual issue does not defeat summary judgment, and a court need not accept a patently false defense.

MRI Broadway Rental, Inc. v. United States Mineral Products Co. · filed 1997-09-16

It is well recognized that a “shadowy semblance of an issue is not enough to defeat [summary judgment]”; nor is a court required to shut its eyes to the patent falsity of a defense.

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

Formula Equipment Leasing, Inc. v. Interstate Industrial Corp. · filed 1997-12-01(b)

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law (see, CPLR 3212 [b]). In response, the defendants failed to demonstrate the existence of any triable issues of fact with respect to their defenses and counterclaims. Consequently, the Supreme Court properly granted the plaintiffs motion for summary judgment.

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

Kassin v. Farciert · filed 1997-12-01(b)

Triable issues of fact (see, CPLR 3212 [b]) exist as to the manner in which the accident involved in this case occurred (see, Vasquez v Gonzalez, 143 AD2d 413).

CPLR 3212(b) permits denial of summary judgment when triable issues of fact remain.

McKoy v. Bagot · filed 1997-12-01(b)

We agree with the Supreme Court that there exist triable issues of fact (see, CPLR 3212 [b]) as to whether the appellant was liable to the plaintiffs under the lead abatement provision of the Administrative Code of the City of New York (see, Juarez v Wavecrest Mgt. Team, 88 NY2d 628).

Under CPLR 3212(b), medical evidence that raises a triable issue of fact can defeat summary judgment.

O'Dol v. Malley · filed 1997-12-15(b)

However, the findings reported by Dr. Chehebar with regard to the straight-leg raising tests which Ms. Small underwent raised a triable issue of fact {see, CPLR 3212 [b]) as to whether she had sustained a “significant limitation of use of a body function or system” and thus as to whether she sustained a “serious injury” (Insurance Law § 5102 [d]; see, Kim v Cohen, 208 AD2d 807).

Section 3212(b) does not permit summary judgment on a fee counterclaim when a triable issue remains as to the amount, if any, owed.

Le Cafe Creme, Ltd. v. Schoenfeld · filed 1997-12-22(b)

There exist triable issues of fact (see, CPLR 3212 [b]) as to the amount, if any, which the plaintiffs owe the defendants for accounting services rendered.

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

Furnari v. Rutigliano · filed 1997-12-29(b)

The Supreme Court improperly granted summary judgment to the individual defendants dismissing the first cause of action in the complaint inasmuch as the plaintiffs have raised triable issues of fact as to whether the labor and materials they provided for the improvement of the individual defendants’ home were supplied with the consent or at the request of the individual defendants (see, CPLR 3212 [b]).

CPLR 3212(b) requires a party opposing summary judgment to raise a triable issue of fact.

Snyder v. Perez · filed 1998-01-12(b)

In light of the injured plaintiffs admission that she only missed approximately three days of work as a result of the accident, we conclude that she failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether her injuries prevented her from performing “substantially all” of the material acts constituting her usual and customary daily activities during at least 90 out of the first 180 days following the accident (see, Letellier v Walker, 222 AD2d 658).

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

Ilic v. Peerless Insurance · filed 1998-01-21(b)

The Defendants’ motion, however, is to “be denied if any party shall show facts sufficient to require a trial of any issue of fact.” (CPLR 3212 [b].) ... This court determines that a question of fact exists on whether Defendants waived their right to assert that Plaintiffs’ claim is time barred by Defendants’ conduct in issuing partial payments of the claim, with unequivocal notes on the checks that they are subject to final review and settlement.

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

Spencer v. Hylton-Spencer · filed 1998-02-09(b)

However, even when the appraisal is considered, the appellants are not entitled to summary judgment. There are issues of fact as to whether the conveyance was made with the intent to hinder or delay the respondent’s effort to enforce her interest in the subject property (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

CPLR 3212 precludes summary judgment when issues of fact remain.

Roman Catholic Church of Good Shepherd v. Tempco Systems · filed 1998-02-23

The Supreme Court correctly denied the appellants’ respective applications for summary judgment (see, CPLR 3212) inasmuch as issues of fact preclude the granting of such relief (see, Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) permits summary judgment when no triable issue of fact exists as to whether the defendant's negligence proximately caused the injury.

Alberti v. DiBella · filed 1998-03-02(b)

No triable issues of fact exist as to whether any negligence on her part was the proximate cause of the collision in which the plaintiff was allegedly injured (see, CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when an opposing affidavit raises a factual issue about the claim.

McKesson Corp. v. Gabe's Pharmacy, Inc. · filed 1998-03-09(b)

The Supreme Court properly denied the motion of the plaintiff McKesson Corporation, doing business as S-P Drug Company, Inc. (hereinafter McKesson), for summary judgment since the affidavit of the president of the defendant Gabe’s Pharmacy, Inc., doing business as Gabe’s Pharmacy (hereinafter the Pharmacy), created an issue of fact as to whether there was an account stated, and as to the amount of money the Pharmacy owed McKesson (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) requires denial of summary judgment when material issues of fact require a trial.

Lichtenstein v. Perfit · filed 1998-03-23(b)

The Supreme Court properly denied the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them since there are material issues of fact which require a trial (see, CPLR 3212 [b]).

Summary judgment is proper when the opposing party fails to raise a triable issue of fact.

Quinones v. Board of Education · filed 1998-03-30(b)

The Supreme Court properly granted the defendant’s cross motion for summary judgment. The plaintiff failed to raise any triable issues of fact (see, CPLR 3212 [b]) with regard to his claim that his alleged injuries were proximately caused by the defendant’s negligence in maintaining the subject premises or in supervising the plaintiff.

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

Bonsignore v. Imperial Extermination Co. · filed 1998-04-13(b)

The plaintiffs’ motion for summary judgment on the issue of liability should have been denied. Triable issues of fact exist as to whether the infestation revealed by the inspection performed by Pelican in August 1994 would have necessarily been discovered by the inspection performed by the appellant in October 1993, as described in the appellant’s report (see, CPLR 3212 [b]).

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

Schaab v. Pipeline of Smithtown, Inc. · filed 1998-04-13(b)

Under the circumstances of this case, we find that there are triable issues of fact as to the happening of the accident precluding the grant of summary judgment (see, CPLR 3212 [b]).

Section 3212 does not permit summary judgment when a factual dispute remains about when a patient was last treated.

Katz v. Greenberg · filed 1998-04-20

Contrary to the defendant’s contention, the court properly concluded that issues of fact exist as to when the plaintiff Robert I. Katz was last treated by the defendant (see, CPLR 3212; CPLR 214-a).

CPLR 3212(b) precludes summary judgment on liability when triable issues of fact remain.

Costigan v. Beckerman · filed 1998-04-27(b)

The Supreme Court properly determined that the existence of triable issues of fact precluded an award of summary judgment on the issue of liability (see, CPLR 3212 [b]).

CPLR 3212(b) requires denial of summary judgment when material issues of fact require a trial.

Cortijo v. Methodist Hospital · filed 1998-05-11(b)

The Supreme Court properly denied the defendant’s motion for summary judgment. There are material issues of fact which require a trial (see, CPLR 3212 [b]).

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

Jones v. Crown Controls Corp. · filed 1998-05-11(b)

The deposition testimony of the parties’ witnesses raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff’s injuries were proximately caused by negligence on the part of Electric Forklift in the performance of its work on the remote control device.

Section 3212(b) bars summary judgment when a triable issue of fact remains about whether an agreement was predominantly for the sale of goods.

Morton Buildings, Inc. v. Edson · filed 1998-05-11(b)

The parties’ conflicting allegations as to the content of their agreement raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the agreement was predominantly for the sale of goods ... and accordingly whether the four-year Statute of Limitations applies.

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

Hoffman v. Anolik · filed 1998-05-18(b)

Upon our review of the record, we conclude that the plaintiff failed to raise a triable question of fact that an attorney-client relationship existed between the defendant and herself (see, CPLR 3212 [b]).

Section 3212(b) permits denial of summary judgment when a factual question remains about whether a breach of contract was material.

Germain v. Staten Island Boat Sales, Inc. · filed 1998-03-16(b)

Finally, the Supreme Court correctly denied that branch of the plaintiffs motion which was for summary judgment on the cause of action alleging breach of contract, as there is a question of fact as to whether the defendant materially breached the contract (see, CPLR 3212 [b]; Productive Recycling v Town of Smithtown, 222 AD2d 663).

Section 3212 requires denial of summary judgment when factual questions remain about a claim.

Page One Auto Sales v. Commercial Union Insurance Companies · filed 1998-04-17

A question of fact exists on the first and second causes of action. The defendant Commercial’s motion for summary judgment dismissing these claims as against Commercial is denied.

CPLR 3212 requires denial of summary judgment when a material question of fact remains.

Board of Managers of Dickerson Pond Condominium I v. Jagwani · filed 1998-05-18

Because there are questions of fact as to whether the roof, defined in the offering plan as part of the common elements, was substantially completed, summary judgment dismissing the counterclaims was properly denied (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557).

CPLR 3212(b) permits summary judgment when no triable issue of fact remains.

Farrah v. Brooklyn Union Gas Co. · filed 1998-03-23(b)

The Supreme Court improperly denied the defendant’s motion for summary judgment. There exist no triable issues of fact (see, CPLR 3212 [b]) as to whether negligence on its part was a proximate cause of the accident in which the plaintiff was allegedly injured.

Under CPLR 3212(b), a triable issue of fact precludes summary judgment.

Zbierska v. Women & AIDS Resource Network, Inc. · filed 1998-03-23(b)

The plaintiff raised a triable issue of fact (see, CPLR 3212 [b]) as to whether her injuries prevented her from performing substantially all of her usual and customary activities for at least 90 of the 180 days following an accident (cf, Horan v Mirando, 221 AD2d 506).

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

Callenda v. Brooklyn Union Gas Co. · filed 1998-03-30(b)

We agree with the Supreme Court that the plaintiffs have failed to raise any triable issue of fact (see, CPLR 3212 [b]) as to whether the injuries allegedly sustained by the plaintiff Christine A. Callenda were caused by the defendant’s negligence.

Section 3212(b) requires evidence raising a triable issue of fact to defeat summary judgment.

Ponticello v. Wilhelm · filed 1998-04-20(b)

The evidence submitted by the defendants fails to raise a triable issue of fact (see, CPLR 3212 [b]) with regard to the issue of liability.

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

Love v. Vecchiarelli · filed 1998-04-27(b)

By order dated June 10, 1997, the Supreme Court properly granted the defendants’ original motion for summary judgment dismissing the complaint based on the absence of triable issues of fact (see, CPLR 3212 [b]) as to whether the plaintiif Darlene Love sustained a serious injury as defined by Insurance Law § 5102 (d).

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

Ventrelli v. Allstate Insurance · filed 1998-05-26(b)

We agree with the Supreme Court that the plaintiffs have failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether they were notified in writing of the availability of supplementary uninsured motorist coverage and the limits being offered, as required, inter alia, by Insurance Law § 3420 (f).

Section 3212(b) permits summary judgment when no triable issue of fact remains on an essential element such as proximate cause.

Alexander v. Ocpark Estates Corp. · filed 1998-06-15(b)

There exist no triable issues of fact (see, CPLR 3212 [b]) as to whether the plaintiff’s injuries were proximately caused by the defendant’s negligence.

Under CPLR 3212(b), summary judgment is denied when material issues of fact remain.

Dixon v. Cassone Leasing, Inc. · filed 1998-06-22(b)

The Supreme Court properly denied Almar’s cross motion for summary judgment, since there were material issues of fact as to whether Almar’s container was illegally parked at the intersection and whether Almar’s container contributed to the accident (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

CPLR 3212(b) requires denial of summary judgment when material issues of fact require a trial.

Mayersohn v. Dierkes Transportation, Inc. · filed 1998-06-22(b)

The Supreme Court properly denied the appellant’s motion for summary judgment. There are material issues of fact which require a trial (see, CPLR 3212 [b]).

CPLR 3212 permits summary judgment in a derivative neglect proceeding when no triable issue of fact remains.

Bobbie Jo M. v. Joseph M. · filed 1998-06-25

Motion for an order pursuant to CPLR 3212 directing the entry of summary judgment in the above abuse and neglect proceeding is granted, it appearing to the satisfaction of the court that there is no triable issue of fact outstanding with respect to the derivative neglect of the child, Bobbie Jo M.

Section 3212(b) permits summary judgment when no triable issue of fact is raised.

Pomerantz v. Barnett · filed 1998-07-13(b)

We agree with the Supreme Court that the plaintiffs have raised no triable issues of fact (see, CPLR 3212 [b]) as to whether the injuries sustained by the plaintiff Leatrice Pomerantz were proximately caused by the negligence, if any, of Doris Barnett or the decedent, Robert Barnett.

Section 3212(b) requires denial of summary judgment when material issues of fact require a trial.

McCartney v. Verdirame · filed 1998-08-24(b)

The Supreme Court properly denied the appellant’s motion for summary judgment. There are material issues of fact which require a trial (see, CPLR 3212 [b]).

CPLR 3212(b) requires denial of summary judgment when alleged traffic violations, if true, raise a triable issue of fact about whether negligence caused the accident.

Goodman v. Cooper Square Auto Repair, Inc. · filed 1998-09-14(b)

We agree with the Supreme Court that the appellant’s alleged violations of various traffic regulations would, if true, raise triable issues of fact (see, CPLR 3212 [b]) as to whether its negligence was the proximate cause of the accident.

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

416 W. 47th St. Assocs. Ltd. v. Fountain House, Inc. · filed 1998-09-18

Pursuant to CPLR 3212, summary judgment should not be granted where there is any doubt as to the existence of a triable issue. ... In this instance there is no triable issue.

Section 3212(b) requires denial of summary judgment when the opposing evidence, accepted as true, presents issues of fact.

In re the Estate of Jacobs · filed 1998-06-22(b)

The objectants’ evidence, if accepted as true (see, Murphy v Herfort, 140 AD2d 415, 416; Weiss v Garfield, 21 AD2d 156), demonstrated that issues of fact existed with respect to the decedent’s testamentary capacity, and whether the decedent’s second wife exercised undue influence over the decedent or made false statements which caused the decedent to dispose of his property in a manner different than he otherwise would have (see, CPLR 3212 [b]; Matter of Kumstar, 66 NY2d 691; Matter of Walther, 6 NY2d 49, 53; Matter of Bianco, 195 AD2d 457, 458).

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

Doyle v. Davies · filed 1998-06-29(b)

We agree with the Supreme Court that there exist no triable issues of fact (see, CPLR 3212 [b]) as to whether the accident which gives rise to this action was proximately caused by negligence on the part of the defendant Gayle Davies.

CPLR 3212(b) requires evidence opposing summary judgment to raise a triable issue of fact.

Gahan v. Legrow · filed 1998-08-17(b)

The evidence which the plaintiff submitted in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to the existence of a serious injury.

A party opposing summary judgment must raise a triable issue of fact.

Pistek v. Campbell · filed 1998-08-24(b)

We agree with the Supreme Court that the plaintiff failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether one of the tenants of the building was acting as an agent of the defendants when she allegedly undertook to remove snow and ice from the area in front of the building.

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

Aguero v. Commonwealth Land Title Insurance · filed 1998-09-28(b)

The plaintiffs failed to raise a triable issue of fact (see, CPLR 3212 [b]) with regard to the second cause of action, which was to recover damages for legal malpractice, as to whether they incurred damages as a result of their attorney’s actions (see, Zasso v Maher, 226 AD2d 366).

CPLR 3212(b) precludes summary judgment when a material factual dispute remains.

Moorman v. Huntington Hospital · filed 1998-10-26(b)

The existence of this factual controversy on a material point precluded any award of summary judgment on this claim (see, CPLR 3212 [b]; Phillips v Kantor & Co., 31 NY2d 307, 311).

Under CPLR 3212(b), triable issues of fact prevent summary judgment.

Johnson v. Freeport Union Free School District · filed 1998-11-02(b)

The plaintiffs have raised triable issues of fact (see, CPLR 3212 [b]) as to whether the appellant retained control over the premises where the accident occurred and whether the appellant properly maintained the premises.

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

Sinzieri v. Expositions, Inc. · filed 1998-11-30

Accordingly, the defendant Expositions’ motion for summary judgment is denied, as there remains an issue of material fact.

Summary judgment must be denied when the evidence raises a triable issue of fact.

Associates v. Ginsberg · filed 1998-12-07(b)

The affidavit by a handwriting expert, which the appellant submitted on the motion to renew, raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the appellant’s signature on the guarantee was forged.

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

In re Mikayla B. · filed 1999-01-11

As follows, the court finds that triable issues of fact exist and petitioner’s motion should be denied.

Section 3212(b) precludes summary judgment when the record presents a triable issue of fact.

Mombeleur v. Salazar · filed 1999-01-19(b)

The record presents a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff Gelina Mombeleur sustained a serious injury within the meaning of Insurance Law § 5102 (d).

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

Thigpen v. Varricchio Plumbing & Heating, Inc. · filed 1998-10-13(b)

We agree with the Supreme Court that there exist no triable issues of fact (see, CPLR 3212 [b]) as to whether any of the plaintiffs who were involved in the subject motor vehicle accident, did in fact sustain a serious injury as defined by Insurance Law § 5102 (d).

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

King David Associates v. Schonberger · filed 1998-11-16

The court properly granted partial summary judgment to the respondents on their fourth cause of action for unpaid rents, and properly dismissed the appellants’ counterclaims based upon fraud and misrepresentation because, on this record, no material issue of fact exists regarding these counterclaims which would require a trial.

Section 3212(b) permits summary judgment when the parties’ submissions show no issue of fact requiring a trial.

Lavi v. Old Cedar Development Corp. · filed 1998-12-31(b)

Although all three of these defendants requested summary judgment pursuant to CPLR 3212 as well, we find that only the defendant Yvette Rafiy demonstrated entitlement to this relief. The parties’ submissions reveal that there is no issue of fact requiring a trial on any theory of liability posited by the plaintiff against this defendant (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212 precludes summary judgment when questions of fact remain.

Fondechene v. Yu · filed 1998-10-19

We agree with the Supreme Court that questions of fact exist which preclude summary judgment (see, CPLR 3212).

CPLR 3212 precludes summary judgment when a jury must resolve a factual dispute about whether a danger was obvious to a child.

Blanco v. Elmont Union Free School District · filed 1999-02-24

Although it could be argued that the stage was generally open and obvious, whether the same applied to an 11-year-old student at defendant school is an issue of fact which must be determined by a jury precluding summary judgment.

Section 3212(b) requires denial of summary judgment when deposition testimony raises a triable issue of fact about an element of the claim.

Jones v. Crown Controls Corp. · filed 1999-03-01(b)

The deposition testimony of the parties’ witnesses raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff’s injuries were proximately caused by negligence on the part of Electric Forklift in the performance of its work on the remote control device. Therefore, summary judgment should have been denied as to the first cause of action, which was to recover damages based on negligence.

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

Cortez v. Holiday Concord Village Management Co. · filed 1999-03-15(b)

We agree with the Supreme Court that there exist triable issues of fact (see, CPLR 3212 [b]) as to the presence and duration of snow and ice at the site of the accident prior to its occurrence.

Under CPLR 3212(b), an opposing affirmation that raises a triable issue of fact defeats summary judgment.

Del v. Eberhart Construction Co. · filed 1999-03-15(b)

However, the affirmation of Dr. Jose Acevedo which the plaintiffs submitted in opposition to the motion raised a triable issue of fact (see, CPLR 3212 [b]).

Section 3212(b) does not permit summary judgment when factual questions remain about negligence, causation, and damages.

Budget Installment Corp. v. Levy, Ehrlich & Kronenberg · filed 1999-03-22(b)

Furthermore, upon the evidence presented in support of and in opposition to the plaintiffs motion and the defendants’ cross motions, we conclude that there are questions of fact with regard to the nature of the relationship between the plaintiff and the defendants, the alleged negligence of the defendants, whether the negligence was the proximate cause of the loss sustained, and whether the plaintiff incurred damages as a direct result of the defendants’ actions (see, Volpe v Canfield, 237 AD2d 282; Murphy v Stein, 156 AD2d 546). Accordingly, the defendants were not entitled to summary judgment (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Evidence offered in opposition to summary judgment must raise a triable issue of fact.

Conti v. Valeriano · filed 1999-03-22(b)

Neither of these reports, however, raised a triable issue of fact (see, CPLR 3212 [b]).

Once a movant shows entitlement to summary judgment as a matter of law, the opposing party must raise a triable issue of fact.

Grolz v. Minnie's World, Inc. · filed 1999-03-22(b)

In response to the respondent’s showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Gaynor v. City of New York · filed 1999-03-29(b)

The respondent’s papers in support of his motion for summary judgment established that he did not create the defective condition or cause the hole because of some special use. Since the plaintiff failed to raise a triable issue of fact (see, CPLR 3212 [b]) on either issue, the Supreme Court properly granted the respondent’s motion.

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

Hardick v. Karp · filed 1999-03-29(b)

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

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

Cofsky v. Hourican · filed 1999-04-12(b)

The plaintiffs’ evidence thus failed to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Waldron v. City of New York · filed 1999-04-12(b)

The plaintiff failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the respondents created the defect, whether the defect arose because of the respondents’ special use of the sidewalk as a driveway, or whether the respondents breached a statutory duty to maintain the sidewalk.

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

Watson v. Getman · filed 1999-04-12(b)

The Supreme Court properly denied summary judgment to the defendant as triable issues of fact exist as to whether his actions constituted a failure to comply with good accepted medical practice (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Ballatore v Verini, 255 AD2d 472).

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

Nova Information Systems, Inc. v. Charboneau · filed 1999-04-26(b)

The plaintiff should not have been awarded summary judgment against the individual defendants in light of the triable issues of fact presented on this record (see, CPLR 3212 [b]).

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

Marene Management Group, Inc. v. CIA Food Marts, Inc. · filed 1999-04-26(b)

The appellant failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the petitioner was entitled to terminate the appellant’s lease based upon the appellant’s default in paying its share of the subject property’s real estate taxes pursuant to the terms and provisions of the lease and the lease modification agreement.

A movant who makes a prima facie showing of entitlement to judgment as a matter of law may obtain summary judgment when no triable issue of fact remains.

In re the Estate of King · filed 1999-05-03(b)

The Surrogate’s Court properly granted the petitioner’s motion for summary judgment. The petitioner made a prima facie showing of entitlement to judgment as a matter of law and there were no triable issues of fact as to whether Woodpecker Finance Ltd. was a bona fide purchaser for value of the challenged assignment (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

Under CPLR 3212(b), summary judgment is denied when the opposing party raises triable issues of fact.

Walton v. Carrion · filed 1999-05-10(b)

As to the merits of the defendants’ summary judgment motion, we find that the plaintiff raised triable issues of fact (see, CPLR 3212 [b]).

CPLR 3212(b) precludes summary judgment when material, triable issues of fact remain.

Chaudhry v. Abadir · filed 1999-05-17(b)

In any event, even if the Statute of Frauds were applicable, there exist material, triable issues of fact (see, CPLR 3212 [b]) as to whether the plaintiffs performed under the agreement; that is, whether their acts were unequivocally referable to the alleged agreement, thereby taking the matter outside the ambit of the statute (see, Gross v Vogel, 81 AD2d 576, 577; see also, Serdaroglu v Serdaroglu, 209 AD2d 600, 603).