N.Y. C.P.L.R. § 3212

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

Strauss v. City of New York · filed 1999-05-17(b)

Neither of the appellants raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the City of New York had notice of, or created, the alleged hazard.

Under CPLR 3212(b), conclusory assertions do not raise a triable issue of fact in opposition to summary judgment.

Salem v. Rosenberg · filed 1999-05-24(b)

However, we find this affidavit to be insufficient to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff sustained a serious injury because it consisted of merely “cbnclusory assertions tailored to meet statutory requirements” (Lopez v Senatore, 65 NY2d 1017, 1019; Marshall v Albano, 182 AD2d 614).

CPLR 3212(b) permits summary judgment when the movant establishes a prima facie case and the opposition raises no triable issue of fact.

Fiscella v. Gibbs · filed 1999-05-24(b)

Furthermore, contrary to the plaintiffs’ contention, the fact that the appellant may have had her wheels turned to the left in anticipation of a turn prior to her being struck in the rear does not raise a triable issue of fact.

CPLR 3212(b) requires denial of summary judgment when a factual issue remains about whether the defendants had notice of conduct that made the harm foreseeable.

Camacho v. East Ramapo Central School District · filed 1999-06-01(b)

Similarly, an issue of fact remains as to whether the defendants Chestnut Ridge and Daniel Pearlstein had notice of the infant defendant’s alleged proclivity to engage in sexual misconduct, and thus whether that misconduct was foreseeable. The motion of the defendants Chestnut Ridge and Daniel Pearlstein for summary judgment was therefor properly denied (see, CPLR 3212 [b]).

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

Koren v. Zazo · filed 1999-06-01

We conclude that this evidence was insufficient to raise a triable issue of fact as to the existence of an employer-employee relationship.

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

In re the Estate of Adler · filed 1999-06-07(b)

We agree with the Surrogate’s Court that triable issues of fact exist (see, CPLR 3212 [b]) as to whether the money paid to the decedent from the three subject trusts was in the nature of an advance distribution.

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

Dalessandro v. Amboy Bus Co. · filed 1999-06-14(b)

Therefore, the plaintiff failed to raise a triable issue of fact and the motion for summary judgment is granted (see, CPLR 3212 [b]).

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

Abadir v. Abadir · filed 1999-06-21(b)

There exists a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff’s employment with the appellant was terminated in retaliation for his disclosing, or threatening to disclose, to a supervisor or to a public body an activity, policy, or practice of the employer that was in violation of the Department of Health Code Rules and Regulations (see, Bordell v General Elec. Co., 88 NY2d 869).

Section 3212 requires denial of summary judgment when triable issues of fact remain about reasonable care or a plaintiff’s contributing negligence.

Espinal v. Sureau · filed 1999-06-21

The Supreme Court properly denied the plaintiffs motion for summary judgment (see, CPLR 3212). The defendant’s vehicle crossed a double-yellow line in violation of Vehicle and Traffic Law § 1126 (a) and struck an oncoming vehicle driven by the plaintiff. The defendant’s violation of that statute may be excused if he exercised reasonable care in an effort to comply (see, Aranzullo v Seidell, 96 AD2d 1048, 1049). The record in this case presents a question of fact for a jury as to whether the defendant’s conduct was reasonable under the circumstances (see, Pfaffenbach v White Plains Express Corp., 17 NY2d 132). In addition, the defendant raised triable issues of fact with respect to whether the plaintiff was guilty of negligence which contributed in some degree to the happening of the accident.

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

Nos v. Greenpoint Manufacturing & Design Center Local Development Corp. · filed 1999-06-21(b)

In opposition, S & G failed to establish the existence of triable issues of material fact which would preclude an award of summary judgment in Greenpoint’s favor on the issue of indemnification (see, CPLR 3212 [b]).

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

Mosca v. Gattuso · filed 1999-06-28(b)

The affidavit sworn to on May 27,1998, by the plaintiff raised a triable issue of fact (see, CPLR 3212 [b]) as to whether she was fraudulently induced into executing the release and rider thereto and thus as to whether they may be set aside based on fraud (see, Mangini v McClurg, 24 NY2d 556, 563).

Summary judgment is unavailable to either side when factual issues remain over whether a release bars the claim.

Levine v. Edwab · filed 1999-05-10(b)

Issues of fact exist as to whether the purported release signed by the plaintiff Eugene Levine upon receipt of the refund tendered by the defendant for an unsuccessful dental treatment was intended to constitute a general release barring the instant malpractice action (see, Best v Yutaka, 90 NY2d 833). Therefore, neither the plaintiffs nor the defendant is entitled to summary judgment.

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

Gadson v. New York City Housing Authority · filed 1999-07-12(b)

The affidavits submitted by the plaintiffs upon renewal were sufficient to create triable issues of fact. Therefore, the defendant’s motion for summary judgment dismissing the complaint was properly denied (see, CPLR 3212 [b]).

Under CPLR 3212(b), affirmed medical reports may establish a prima facie case for summary judgment, after which the opposing party must raise a triable issue of fact.

Shay v. Jerkins · filed 1999-07-12(b)

The affirmed reports prepared by a board certified orthopedic surgeon, Dr. Lawrence Miller, which the defendant submitted in support of his motion for summary judgment made out a prima facie case (see, CPLR 3212 [b]) that the plaintiffs Toni A. Shay and Lauren Shay did not sustain serious injuries within the meaning of Insurance Law § 5102 (d).

Under CPLR 3212(b), summary judgment is proper when the movant makes a prima facie case and the opponent raises no triable issue of fact.

Leale v. Ruocco · filed 1999-08-23(b)

The defendants made out a prima facie case for summary judgment. In opposition, the plaintiff did not raise any triable issues of fact. Accordingly, the Supreme Court properly granted the defendants’ motions for summary judgment (see, CPLR 3212 [b]).

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

Estevez v. Manos · filed 1999-09-20(b)

The appellant thus raised a triable issue of fact (see, CPLR 3212 [b]) as to whether she sustained a serious injury.

CPLR 3212(b) permits summary judgment when the movant establishes entitlement to judgment as a matter of law and the opponent fails to raise a triable issue of fact.

Kelly v. Poughkeepsie Area Chamber of Commerce · filed 1999-10-04(b)

The defendants established their entitlement to judgment as a matter of law and the plaintiff failed to raise a triable issue of fact sufficient to defeat the defendants’ motion (see, CPLR 3212 [b]).

Section 3212 makes summary judgment inappropriate when conflicting evidence raises a triable issue of fact.

Kyle v. City of New York · filed 1999-10-14

There are contradictory assertions regarding the degree of involvement of the City over the work site, as well as the degree to which its personnel may have exercised supervision over the project, that make summary judgment treatment inappropriate.

Section 3212(b) requires denial of summary judgment when the opposing evidence raises a triable issue of fact despite the movant’s prima facie showing.

Naiman-Michaels v. Fisk · filed 1999-10-18(b)

The defendant made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). However, the plaintiff’s evidence submitted in opposition to the motion raised a triable issue of fact, and the Supreme Court properly denied summary judgment to the defendant (see, CPLR 3212 [b]).

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

Reape v. City of New York · filed 1999-11-01

There remain material issues of fact on the plaintiff’s various causes of action which preclude summary judgment (see, CPLR 3212).

Section 3212 permits summary judgment when the movant makes a prima facie showing and the opponent fails to raise a triable issue of fact.

Vail-Ballou Press, Inc. v. Tomasky · filed 1999-11-10

In view of defendant’s failure to raise any triable issues of fact as to whether the charge lacked a reasonable foundation ... and his own admission that the trespass charge was dismissed pursuant to an agreement between the parties, Supreme Court should have granted plaintiffs alternative request for summary judgment dismissing the malicious prosecution cause of action.

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

Guardado v. Cortez · filed 2000-02-14(b)

The medical evidence submitted by the appellant did not raise a triable issue of fact (see, CPLR 3212 [b]).

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

Nelstad Material Corp. v. Frost Sand & Gravel Corp. · filed 2000-02-14(b)

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

Summary judgment is unavailable when the submissions raise a question of fact about a party’s liability.

Claypool v. City of New York · filed 1999-12-07

The submissions on the summary judgment motion are sufficient to raise a question of fact as to whether the Aaron defendants, as property owners and tenant, are answerable to defendant City of New York on its cross claim for such damages as may be assessed against the City on the ground that the sidewalk was negligently maintained (Hausser v Giunta, 88 NY2d 449, 452-453).

Section 3212(b) calls for denial of summary judgment when a question of fact remains.

Worthington v. Brown Bus Co. · filed 2000-01-10(b)

Questions of fact exist regarding the reasonableness of the reaction of the defendant Michael J. Washington, the operator of the subject bus, in light of the attendant circumstances (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Ferrer v Harris, 55 NY2d 285, 293).

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

Ditz v. Myriad Constructions, Inc. · filed 2000-02-16(b)

Although Supreme Court properly granted the motion of defendant B. Milligan Contracting, Inc. (Milligan) for summary judgment dismissing the complaint against it (appeal No. 1), the court erred in granting summary judgment to defendant Myriad Constructions, Inc. (Myriad) pursuant to CPLR 3212 (b) and dismissing the complaint against it (appeal No. 2). ... With respect to Myriad, however, there is an issue of fact whether Myriad created the dangerous condition.

CPLR 3212(b) requires denial of summary judgment when material facts remain in dispute.

Greene v. Chronometric Telecommunications, Inc. · filed 2000-03-20(b)

The Supreme Court properly denied that branch of the defendants’ cross motion which was for summary judgment on the first, second, fourth, and fifth causes of action insofar as asserted against the defendant Jack M. Greene, and the sixth, seventh, and eighth causes of action insofar as asserted against the defendant Chronometric Telecommunications, Inc.

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

Quinn v. City of New York · filed 2000-04-10(b)

The Supreme Court properly denied the appellants’ motion for summary judgment as there are issues of fact as to whether they negligently repaired the sidewalk before the accident (see, Zuckerman v City of New York, 49 NY2d 557, 562; CPLR 3212 [b]).

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

Richard J. Principi, Inc. v. Richard J. Novak, Ltd. · filed 2000-04-17(b)

The Supreme Court properly denied that branch of the respondents-appellants’ motion which was for summary judgment dismissing the second cause of action asserted in the second amended complaint, since there are issues of fact as to whether the respondents-appellants possessed notice that the plaintiff retained an interest in the subject property, or whether the respondents-appellants had knowledge of facts that would have led a reasonably prudent person to make further inquiries concerning the property (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d 708).

Under CPLR 3212, a party opposing a prima facie case for summary judgment must raise a triable issue of fact.

Esquire Capital Corp. v. Motortech, Inc. · filed 2000-04-24

After the plaintiff made out a prima facie case for summary judgment, the appellants failed to raise a triable issue of fact that the plaintiff did not act reasonably in relying upon the apparent authority of the appellants’ attorney to enter into an escrow agreement on behalf of his clients or to accept the loan proceeds on behalf of his clients (see, Hallock v State of New York, 64 NY2d 224; Policy Funding Corp. v Kings County Lafayette Trust Co., 40 AD2d 525, affd 33 NY2d 776).

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

Westchester County Medical Center v. Liberty Mutual Insurance · filed 2000-04-24(b)

The Supreme Court erred in granting judgment to the plaintiff on its claim for no-fault benefits as a matter of law. There are triable issues of fact as to whether the surgical procedure was properly validated by the medical records and whether the correct billing code was used (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Under CPLR 3212(b), speculative arguments do not raise a triable issue of fact that defeats summary judgment.

Bobien v. City of White Plains · filed 2000-05-01(b)

The plaintiffs speculative arguments failed to raise triable issues of fact as to whether the City created the icy condition, or whether it knew or should have known of the condition because it inspected or performed work at the area in question shortly before the plaintiffs fall (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 325; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Amabile v City of Buffalo, supra, at 474; ITT Hartford Ins. Co. v Village of Ossining, 257 AD2d 606).

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

Fabre v. Nationwide Insurance · filed 2000-05-01(b)

The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint since issues of fact exist as to whether the plaintiffs explanations regarding her difficulties in the production of the requested documents were reasonable (see, Alpha Auto Brokers v Continental Ins. Co., 214 AD2d 629; see also, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557), and whether the discrepancies in the subject income tax returns were the product of intentional, fraudulent conduct or excusable error (see, Happy Hank Auction Co. v American Eagle Fire Ins. Co., 1 NY2d 534, 539).

CPLR 3212(b) requires proof sufficient to show a bona fide factual issue to defeat summary judgment.

McRay v. Citrin · filed 2000-03-28(b)

... plaintiff did not otherwise adduce proof sufficient to demonstrate a bona fide factual issue as to the existence of the claimed obligation (see, CPLR 3212 [b]; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338).

Section 3212(b) precludes summary judgment when disputed facts prevent judgment as a matter of law.

Empire Magnetic Imaging, Inc. v. Comprehensive Care of New York, P. C. · filed 2000-04-10(b)

There are disputed facts regarding the nature of the parties’ contractual obligations, and the extent and nature of the payments EMI claims are due from CCNY which preclude the granting of judgment as a matter of law to any party (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

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

Hinderhofer v. Daisy Manufacturing Co. · filed 2000-05-15(b)

We agree with the Supreme Court that there are triable issues of fact (see, CPLR 3212 [b]) as to whether the appellant’s negligent entrustment of an air rifle to the infant defendant was the proximate cause of the injuries sustained by the infant plaintiff.

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

Missere v. Grant · filed 2000-05-15(b)

There are issues of fact as to the viability of the plaintiffs’ title to the property and as to whether the plaintiffs’ predecessors in interest had reserved an easement across the private road in question. Accordingly, the plaintiffs’ motion for summary judgment was properly denied (see, CPLR 3212 [b]).

Under CPLR 3212(b), summary judgment must be denied when the opposing party presents evidence raising a triable question of fact.

State v. International Fidelity Insurance · filed 2000-05-18(b)

As “a court’s function on a motion for summary judgment is issue finding, not issue determination” (Hierro v Bliss Co., 145 AD2d 731, 732), we find that sufficient evidence was proffered to establish the existence of a triable question of fact as” to whether the bonds issued by defendant had been canceled prior to the time that Golden defaulted on its indebtedness to the State.

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

Hoffman v. Breslin · filed 2000-05-22(b)

In addition, an issue of fact exists regarding Frankel’s status as an employee of the injured plaintiffs corporate employer and the applicability of the Worker’s Compensation Law (see, CPLR 3212 [b]; Alvarez v Prospect Hosp, 68 NY2d 320, 324; McFarlane v Chera, 211 AD2d 764).

Under CPLR 3212(b), summary judgment is warranted when the moving party establishes entitlement to judgment as a matter of law and the opposing party raises no triable issue of fact.

Fenstermacher v. Nevins Amusements, Inc. · filed 2000-06-19(b)

Those defendants established entitlement to judgment as a matter of law with respect to these causes of action and the plaintiffs, in their opposing papers, failed to raise any triable issues of fact (see, CPLR 3212 [b]; Zuckerman v City of New York, supra).

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

Orix Credit Alliance, Inc. v. Grace Industries, Inc. · filed 2000-06-19(b)

There are issues of fact regarding whether all of the lease payments were timely made, and whether the payment option agreement was properly exercised (see, CPLR 3212 [b]).

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

Graves v. Liu · filed 2000-06-26(b)

Accordingly, the plaintiff failed to raise a triable issue of fact and the defendants are entered to summary judgment (see, CPLR 3212 [b]).

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

Reid v. Estevez · filed 2000-07-10(b)

The plaintiffs’ submissions failed to raise a triable issue of fact (see, CPLR 3212 [b]). Therefore, the defendants’ motion was properly granted.

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

Vargas v. Menorah Realty Corp. · filed 2000-07-10(b)

The Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Menorah, Moishe Moses, and Sam Moses, as an issue of fact exists as to whether Menorah was a corporation or a partnership.

An opposing expert affidavit can raise a triable issue of fact that defeats summary judgment even after the movant makes a prima facie showing.

Callanan v. Crabhouse of Douglaston, Inc. · filed 2000-07-31(b)

After the defendants made out a prima facie case for summary judgment, the affidavit of the plaintiffs expert, consulting engineer Joseph Farahnik, raised a triable issue of fact (see, CPLR 3212 [b]) as to whether a tiled floor with “rough cement grout” between the tiles was unsuitable for a dance floor and thus created a hazard for individuals such as the plaintiff.

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

Mistretta v. Hartford Accident & Indemnity Co. · filed 2000-08-14(b)

The Supreme Court properly denied the branch of the defendant’s motion based on breach of the concealment of fraud clause of the subject policy, since triable issues of fact exist as to that issue (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325; Zuckerman v City of New York, 49 NY2d 557, 562; Eagle Tenants Corp. v Fishbein, 182 AD2d 610).

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

Haden v. Fenley & Nicol Environmental, Inc. · filed 2000-06-12(b)

...as issues of fact exist, inter alia, as to who created the hole, and the degree of Cashin’s supervision or control over the project (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325; Zuckerman v City of New York, 49 NY2d 557, 562-563; see also, D’Andria v County of Suffolk, 112 AD2d 397).

A party opposing summary judgment must submit evidence that raises a triable issue of fact.

Frullo v. Incorporated Village of Rockville Centre · filed 2000-07-24(b)

... the evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact on that issue (see, CPLR 3212 [b]; Zuckerman v City of New York, supra, at 562).

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

Goldin v. Lee · filed 2000-08-14(b)

The affirmed report prepared by Dr. Ali E. Guy which was submitted by Joel Goldin in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether he sustained a serious injury.

Questions of fact preclude summary judgment under CPLR 3212.

Lovallo v. Jacobs · filed 2000-07-31

There are questions of fact which preclude the granting of 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; McCarthy v City of New York, 250 AD2d 654; Brkani v City of New York, 211 AD2d 740).

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

Fernandez v. Suffolk County Water Authority · filed 2000-10-02(b)

Further, there are triable issues of fact precluding summary ... judgment with respect to the claims for common-law and contractual indemnification (see, CPLR 3212 [b]).

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

Loporto v. New York City Transit Authority · filed 2000-10-02(b)

The medical evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212(b) does not permit summary judgment when material issues of fact require a trial.

In re the Estate of McGeogh · filed 2000-10-23(b)

Since issues of fact exist as to whether the decedent and his first wife intended to provide life insurance for the benefit of the children, regardless of whether they were emancipated, the court erred in granting that branch of the respondent’s motion which was for summary judgment dismissing so much of the petition as sought to recover the proceeds of the decedent’s life insurance policies (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).

A triable issue of fact warrants denial of summary judgment under Section 3212(b).

Drysdale v. Evanac · filed 2000-11-06(b)

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

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

Rexer v. Sklar · filed 2000-11-06

We agree with the Supreme Court that triable issues of fact exist which preclude the granting of partial summary judgment to the plaintiff on the issue of liability (see, CPLR 3212; Young v Mauch, 268 AD2d 583).

Section 3212(b) requires a party opposing summary judgment to raise a triable issue of fact when the moving party has made a prima facie showing.

Weissman v. Nally · filed 2000-11-06(b)

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

Under CPLR 3212(b), summary judgment is proper when the movant establishes entitlement to judgment as a matter of law and the opponent fails to raise a triable issue of fact.

Brennan v. American Continental Properties, Inc. · filed 2000-11-13(b)

The Supreme Court properly granted the motion of the defendant Paul Bitts Co., Inc., which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it since that defendant established its entitlement to judgment as a matter of law and the appellants failed to raise any triable issues of fact (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

CPLR 3212 does not permit summary judgment when a factual issue remains about whether the parties agreed to payment.

Frye v. New York Telephone Co. · filed 2000-12-04

Under the circumstances, there are issues of fact as to whether there was an agreement to pay the plaintiff the sum of $50,000 (see, CPLR 3212). Accordingly, the defendant is not entitled to summary judgment.

Section 3212(b) precludes summary judgment when an issue of fact must be resolved at trial.

Expedite NYC, Inc. v. 1600 Stewart Avenue, L. L. C. · filed 2000-10-30(b)

Accordingly, an issue of fact to be resolved at trial exists, and summary judgment is not appropriate (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

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

Korn v. First UNUM Life Insurance · filed 2000-11-20(b)

The Supreme Court properly denied the motion of the defendant First UNUM Life Insurance Company for summary judgment dismissing the complaint insofar as asserted against it and the plaintiffs cross motion for summary judgment on the complaint. There are issues of fact as to whether the plaintiffs occupation was that of an orthopedic surgeon and whether he was “totally disabled” within the meaning of the disability income insurance policies (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; McGrail v Equitable Life Assur. Socy., 292 NY 419, 425; Godesky v First Unum Life Ins. Co., 239 AD2d 547).

Under CPLR 3212(b), admissible evidence raising a question of fact precludes summary judgment.

Oro v. General Motors Corp. · filed 2000-11-27(b)

There was sufficient admissible evidence to raise a question of fact as to whether the company which installed the car alarm in the defendant Ramon Alicea’s car was an independent contractor (see, Beach v Velzy, 238 NY 100, 104; Lazo v Mak’s Trading Co., 199 AD2d 165, affd 84 NY2d 896; cf., Sikes v Chevron Cos., 173 AD2d 810). Therefore, the Supreme Court properly denied that branch of the appellant’s motion which was for summary judgment dismissing the cause of action to recover damages for negligence (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

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

Jenkins v. Westchester County · filed 2000-12-18(b)

This evidence raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the movement of the bus was “extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of the defendant” (Urquhart v New York City Tr. Auth., 85 NY2d 828, 830).

Section 3212(b) permits summary judgment when the moving party makes a prima facie showing and the opposing party fails to raise a triable issue of fact.

Awad v. City of New York · filed 2000-12-26(b)

After the City made out a prima facie case for summary judgment, the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the accident was the result of negligence on the part of the City.

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

McClure v. Schindler Elevator Corp. · filed 2001-01-08(b)

We agree with the Supreme Court that triable issues of fact exist precluding summary judgment in favor of the third-party defendant (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212 (b) requires denial of summary judgment when a genuine issue of fact remains; public access to an escalator alone does not resolve whether the defendants had exclusive control.

Lopez v. Sears, Roebuck & Co. · filed 2001-01-10(b)

And, despite whether the escalators in the instant matter and Wang were available to considerable access by people, that factor alone does not require summary judgment on the question of exclusive control.

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

Carbone v. Great Atlantic & Pacific Tea Co. · filed 2001-01-22(b)

Furthermore, since the evidence submitted by the plaintiffs raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the stanchion over which the injured plaintiff tripped and fell constituted a hazardous condition, it was proper for the Supreme Court, upon reargument, to vacate its prior order and deny the defendant’s motion.

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

Digilov v. Kafka · filed 2001-01-22(b)

We agree with the Supreme Court that the medical evidence submitted by the plaintiff raised a triable issue of fact (see, CPLR 3212 [b]) as to whether he sustained a serious injury within the meaning of Insurance Law § 5102 (d).

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

New York & Presbyterian Hospital v. New York Central Mutual Insurance · filed 2001-01-29(b)

In opposition to the plaintiffs’ prima facie showing of entitlement to judgment as a matter of law, the defendant presented sufficient evidence to raise triable issues of fact as to the completeness of the hospital facility forms submitted by the plaintiffs in support of their no-fault insurance claims (see, 11 NYCRR 65-3.5 [f]), and as to the timeliness of the defendant’s verification and payment or denial procedures (see, 11 NYCRR 65-3.5 [a]; 65-3.6 [b]; 65-3.8 [a] [1]; CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

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

Cole v. Brandofino · filed 2001-02-05(b)

The medical evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Barbeito v. Kesev Taxi, Inc. · filed 2001-03-05(b)

The affidavit of the plaintiff’s treating chiropractor failed to establish the duration of the alleged limitation, and thus, the plaintiff’s medical evidence failed to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Yaguachi v. 250 East 51st Street, Inc. · filed 2001-03-05(b)

We agree with the Supreme Court that a triable issue of fact exists (see, CPLR 3212 [b]) as to whether the accident occurred at the appellant’s premises.

CPLR 3212 permits summary judgment when the movant shows entitlement to judgment as a matter of law and the opponent raises no triable issue of fact.

Bank of New York v. Anthonisen · filed 2001-03-12

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law (see, CPLR 3212; ...). In opposition, the appellant failed to raise any triable issues of fact.

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

Weber v. Levine · filed 2001-03-12

There is a triable issue of fact as to whether the plaintiff Heidi Weber’s bedrails were in the raised position, thereby requiring the denial of the respondents’ motion for summary judgment dismissing the complaint insofar as asserted against them (see, CPLR 3212; see generally, Alvarez v Prospect Hosp., 68 NY2d 320).

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

Cornish v. Lawrence Union Free School District · filed 2001-03-19(b)

We agree with the Supreme Court that there exist triable issues of fact (see, CPLR 3212 [b]) both as to whether the defendant breached a duty to provide adequate supervision and whether such negligence was the proximate cause of the injuries sustained by the infant plaintiff (see, Mirand v City of New York, 84 NY2d 44, 49-50).

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

York/Hunter, Inc. v. Oratz · filed 2001-03-19(b)

The Supreme Court properly denied the defendants’ motions for summary judgment as there are triable issues of fact (see, CPLR 3212 [b]; Liberty Co. v Boyle, 272 AD2d 380; Glasser v Kashinsky, 237 AD2d 252; Grumman Aerospace Corp. v Rice, 199 AD2d 365).

Under CPLR 3212, a party opposing summary judgment must raise an issue of fact requiring a trial.

Cannon v. Boniello · filed 2001-03-26

In opposition, the plaintiffs failed to raise an issue of fact requiring a trial (see, CPLR 3212).

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

Lesnick v. Statfeld · filed 2001-03-26(b)

The Supreme Court properly denied the plaintiffs motion for summary judgment, as triable issues of fact exist (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212 permits denial of summary judgment when triable issues remain about negligence and proximate cause.

Maliszewska v. Potamkin New York LP Mitsubishi Sterling · filed 2001-03-29

In this pedestrian knock-down personal injury action, Potamkin, a car dealership with a car service center, was properly denied summary judgment in light of triable issues as to whether it negligently serviced the vehicle involved in the accident and as to whether, if it did, such servicing was the proximate cause of the accident.

Under CPLR 3212(b), summary judgment is warranted when the movant establishes prima facie entitlement to judgment and the opposing evidence raises no triable issue of fact.

Agent 17, Inc. v. P.B. Ashley Knits, Ltd. · filed 2001-04-02(b)

The appellant demonstrated its prima facie entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 44-45; Platt v Portnoy, 220 AD2d 652, 653). The evidence submitted by the plaintiff in opposition failed to raise a triable issue of fact (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324).

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

Allstate Power-Vac, Inc. v. FCE Industries, Ltd. · filed 2001-04-02

Finally, the respondent failed to offer evidence in opposition to the motion sufficient to raise a triable issue of fact (see, CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Section 3212(b) precludes summary judgment when the opposing papers establish triable issues of fact.

Conch Associates Inc. v. PMCC Mortgage Corp. · filed 2001-04-02(b)

In support of its motion for summary judgment on the complaint, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law. We agree with the Supreme Court, however, that the papers submitted by the defendant in opposition to the motion established that there are triable issues of fact which preclude the grant of summary judgment to the plaintiff (see, CPLR 3212 [b]; cf., Zuckerman v City of New York, 49 NY2d 557).

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

Links v. Roman Catholic Church of St. Raymond Pennafort At Lynbrook in County of Nassau · filed 2001-04-02

However, the plaintiffs raised a triable issue of fact as to whether the defendant had actual or constructive notice of the condition that allegedly caused the accident (see, CPLR 3212).

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

Bhupsingh v. Long Island Cremation Co. · filed 2001-04-09(b)

The Supreme Court properly granted summary judgment to Romanelli. After it made out a prima facie case for summary judgment, the plaintiff did not raise a.triable issue of fact (see, CPLR 3212 [b]) as to whether the improper release of the decedent’s ashes resulted from negligence on their part.

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

Carbone v. Euler · filed 2001-04-23(b)

In opposition to the plaintiffs’ prima facie showing of entitlement to judgment as a matter of law, the defendants raised issues of fact warranting a trial (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

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

Morrissey v. Frontier Communications of New York, Inc. · filed 2001-05-07(b)

Triable issues of fact exist as to whether the defendant was negligent (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

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

Benamu v. American Honda Finance Corp. · filed 2001-05-21(b)

We agree with the Supreme Court that there exist triable issues of fact which preclude the granting of the appellant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him (see, CPLR 3212 [b]).

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

Blum v. Guardian Life Insurance Co. of America · filed 2001-05-21(b)

However, issues of fact remain as to whether, pursuant to disability insurance policies G-185963 and G-18964, the plaintiff was unable “to engage in any reasonably gainful occupation for which he shall be fitted by education, training, or experience, having due regard for the nature of his occupation at the time disability shall have begun and for his prior average earnings.” Accordingly, the defendant is not entitled to summary judgment dismissing the causes of action relating to policies G-185963 and G-18964 (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; McGrail v Equitable Life Assur. Socy., 292 NY 419, 425; Godesky v First Unum Life Ins. Co., 239 AD2d 547).

CPLR 3212(b) does not permit summary judgment when the evidence raises an issue of fact.

Turso v. Stein · filed 2001-06-11(b)

Raytone should not have been granted summary judgment on this record. While Raytone asserts that the plaintiff fell at a location outside the area where it performed the repair, the plaintiff submitted photographic and testimonial evidence raising an issue of fact regarding whether she fell on a condition created by Raytone in connection with its work. Under these circumstances, Raytone is not entitled to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562; CPLR 3212 [b]).

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

Bankers Trust Co. of California, N. A. v. Payne · filed 2001-06-18(b)

Moreover, in addition to the issues raised by defendant’s defenses of payment and fraud and the issues raised regarding the disbursement of the loan proceeds, defendant has raised a defense pursuant to the Home Ownership and Equity Protection Act of 1994 (15 USC § 1639 [the HOEPA]) which precludes the granting of summary judgment in favor of plaintiff (see, CPLR 3212 [b]).

Section 3212(b) does not permit summary judgment on liability when a factual dispute prevents a determination as a matter of law.

Bozewicz v. Nash Metalware Co. · filed 2001-06-04(b)

Accordingly, Powerfeed is not entitled to summary judgment on the issue of liability, since it cannot be determined as a matter of law whether the defendants, who admitted to locking out the tenant, acted lawfully.

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

Wilmington Trust Co. v. Ajudua · filed 2001-10-01(b)

The appellants failed to offer evidence sufficient to raise a triable issue of fact (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

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

Beckford v. Lewis · filed 2001-10-22(b)

The medical evidence submitted by the plaintiff in opposition to the motion was insufficient to raise a triable issue of fact (see, CPLR 3212 [b]; Ceglian v Chan, 283 AD2d 536; Grossman v Wright, 268 AD2d 79).

Under CPLR 3212, opposing affidavits that raise a triable issue of fact preclude summary judgment.

J.A.O. Acquisition Corp. v. Stavitsky · filed 2001-11-14

The first cause of action, however, is not ripe for summary judgment. The parties have submitted opposing affidavits about whether Stavitsky and Brogowski sent plaintiffs a net worth statement as required by paragraph 2.2 of the amendment. ... Therefore, the parties have raised a triable issue of fact regarding the net worth statement.

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

Perez v. Gerardi · filed 2001-07-02(b)

Furthermore, the appellant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him was properly denied, as there are issues of fact requiring a trial (see, CPLR 3212 [b]).

Section 3212 permits a plaintiff to defeat summary judgment when the pleadings and proof raise factual issues requiring resolution.

Ramos v. City of New York · filed 2001-08-16

As noted above, we are making no substantive findings on the merits of this case. We find only that plaintiffs pleadings and proof are adequate to defeat defendant’s CPLR 3211 and 3212 dismissal motion concerning the legal claims outlined above.

Section 3212(b) precludes summary judgment when questions of fact remain about whether a contract existed.

Berlinger v. Lisi · filed 2001-11-01(b)

Our review of the record reveals questions of fact as to the existence of an express oral agreement between the parties or, at minimum, a contract implied in fact rendering summary judgment inappropriate (see, CPLR 3212 [b]).

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

Fragale v. Geiger · filed 2001-11-26(b)

The submissions which the plaintiff offered in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether he sustained a serious injury (see, Insurance Law § 5102 [d]; Grossman v Wright, 268 AD2d 79).

Under CPLR 3212(b), a party opposing summary judgment must raise a triable issue of fact after the movant establishes entitlement to judgment as a matter of law.

Great Atlantic & Pacific Tea Co. v. Friedman · filed 2001-12-03(b)

In opposition, the plaintiff failed to raise a triable issue of fact to defeat the respondents’ motion (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

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

Brand v. Lipton · filed 2001-12-10(b)

The Supreme Court properly denied summary judgment since the record presents issues of fact which could not be resolved on these motions (see, CPLR 3212 [b]).

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

Jones v. City of New York · filed 2001-12-24(b)

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

Section 3212(b) permits summary judgment when the movant establishes a prima facie case and the record raises no triable issue of fact.

Staib v. City of New York · filed 2001-12-31(b)

Furthermore, the deposition testimony established a prima facie case (see, CPLR 3212 [b]) that the appellant did not create the defective condition on the sidewalk which allegedly caused the plaintiff Eleanor B. Staib to trip and fall (see, Leggio v County of Nassau, 281 AD2d 518; Ritts v Teslenko, 276 AD2d 768). The record contains no evidence which raises a triable issue of fact (see, CPLR 3212 [b]).

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

Thompson v. Mid-Westchester Construction Group, Inc. · filed 2002-01-24

The Supreme Court erred in granting summary judgment in favor of plaintiffs and Campos as material issues of fact exist, inter alia, regarding the proximate cause of plaintiff Harold Thompson’s injury (see, CPLR 3212) and whether, Campos, as contract vendee, acted as an agent of the general contractor and owner Mid-Westchester (see, Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 576-577).

Under CPLR 3212(b), the party opposing summary judgment must raise a triable issue of fact after the movant establishes entitlement to judgment as a matter of law.

Congregation Noam Torah V'Chesed v. Cigna Property & Casualty Co. · filed 2002-01-28(b)

In response, the plaintiff failed to raise a triable issue of fact that Cigna issued the subject policy (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Under CPLR 3212(b), summary judgment must be denied when the opposing party raises a triable issue of fact, even if the movant made a prima facie showing.

Tortorella v. New York City Transit Authority · filed 2002-02-11(b)

The NYCTA demonstrated its prima facie entitlement to summary judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). In opposition, however, the appellant raised a triable issue of fact as to whether the NYCTA, through its agent the bus operator, had actual notice of the dangerous condition before the happening of the accident (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837; Feuer v HASC Summer Program, 247 AD2d 429). Accordingly, the Supreme Court erred in granting summary judgment to the NYCTA.

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

Fireman's Fund Insurance v. Farrell · filed 2001-12-10(b)

We further conclude that the Supreme Court properly denied the plaintiffs’ cross motion for summary judgment, as the issue of whether Farrell’s conduct fell below the ordinary and reasonable skill and knowledge possessed by other members in his community presents a question of fact for the jury (see, CPLR 3212 [b]).

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

Executive Consulting Group v. Ernst & Young, LLP · filed 2002-01-22(b)

The Supreme Court properly found the existence of disputed factual issues sufficient to warrant the denial of the plaintiffs motion for summary judgment (see, CPLR 3212 [b]; Barrister Referrals v Windels, Marx, Davies & Ives, 169 AD2d 622, 623; Ritta Personnel v Andrew F. Capoccia, P.C., 144 AD2d 196).

CPLR 3212(b) requires denial of summary judgment when factual issues remain about whether partial performance removes an oral agreement from the Statute of Frauds.

Gerry's Foods of Oceanside, Inc. v. Blue Ridge Farms, Inc. · filed 2002-03-11(b)

There are issues of fact as to whether the parties’ actions, including the transfer of assets and payment of royalties, constituted partial performance unequivocally referable to the unexecuted sales agreement, thereby removing the agreement from the Statute of Frauds (see, CPLR 3212 [b]; Planet Waste Mgt. v Computer Assoc. Intl., 269 AD2d 376; Whitehorn Assoc. v One Ten Brokerage, 264 AD2d 516; Chaudhry v Abadir, 261 AD2d 498; Sarcona v DeGiaimo, 226 AD2d 1143; Spodek v Riskin, 150 AD2d 358).

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

Cadely v. Maimonides Medical Center · filed 2002-03-18(b)

There are issues of fact requiring the denial of summary judgment (see, CPLR 3212 [b]).

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

Chadrjian v. Purcell · filed 2002-04-29(b)

The defendants’ motion for summary judgment dismissing the complaint was properly denied since there are triable issues of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Milhim v Almo Realty Corp., 188 AD2d 450).

CPLR 3212(b) requires denial of summary judgment when material facts remain in dispute and the record lacks evidence needed to resolve them.

Bowen v. City University · filed 2002-05-06(b)

Further, it was improper to grant summary judgment since there are triable issues of fact concerning the amount of snow that fell before the accident, as well as the amount of time that passed between the cessation of snow and the time of the accident. The record is devoid of any evidence concerning the defendants’ snow and ice removal procedures (see CPLR 3212 [b]; Nikolic v Valley Stream Cent. High School Dist., 240 AD2d 551).

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

Coleman v. Hayes · filed 2002-05-20(b)

However, we find, as noted previously, ... that there is a triable issue of fact as to whether the stress in providing assistance to the accident victims proximately caused the injured plaintiffs heart attack, precluding a grant of summary judgment in the plaintiffs’ favor (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106).

Section 3212 permits summary judgment when the record presents no triable issue of material fact.

Louhal Properties, Inc. v. Strada · filed 2002-03-28

The court determines that the extensive record herein presents no triable issue of material fact. (See CPLR 3212.) Accordingly, it is ordered that the motion of 7-Eleven for summary judgment is granted.

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

Dagar Group, Ltd. v. Hannaford Bros. · filed 2002-06-24

Wappingers established that it did not have an implied contract with the plaintiff, since it neither accepted or requested any of the plaintiffs services. The plaintiff failed to raise an issue of fact in this regard (see CPLR 3212 [fl).

Under CPLR 3212(b), summary judgment must be denied when the movant’s own evidence raises a triable issue of fact.

Redfern v. 1552-75-82 President Street Realty Corp. · filed 2002-07-01(b)

However, the Supreme Court properly denied the defendant’s motion for summary judgment, since the plaintiffs’ deposition transcripts, submitted by the defendant in support of the motion, raised an issue of fact as to whether the building superintendent created the allegedly defective condition by removing and replacing the light fixture prior to the date of the accident (see generally CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320).

Partial summary judgment on liability is denied when questions of fact remain about liability.

McCabe v. Competition Imports, Inc. · filed 2002-07-09

Although ownership may not be denied by Competition for its failure to comply with the statutory requirements for vehicle registrations, there exists questions of fact that cannot be determined as a matter of law relating to the liability portion of this cause of action.

Summary judgment must be denied when the opposing party submits evidence raising a triable issue of fact.

Nyack Hospital v. Progressive Casualty Insurance · filed 2002-07-15(b)

Contrary to the contention of the plaintiff New York University Hospital Rusk Institute (hereinafter New York University Hospital), the Supreme Court also erred in granting that branch of the motion which was for summary judgment on the fourth cause of action, as the defendant insurer successfully raised a triable issue of fact by submitting evidence that it timely sent New York University Hospital a denial of claim form in which it maintained that the subject policy had been exhausted (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320).

Under CPLR 3212, expert affirmations that raise triable issues of fact can defeat summary judgment after the movant makes a prima facie case.

Rosarky v. Rifkin · filed 2002-09-30

The Supreme Court properly denied the appellant’s cross motion for summary judgment. After the appellant made out a prima facie case, the affirmations submitted by the plaintiff’s experts in opposition raised triable issues of fact (see CPLR 3212; Barone v Flynn, 284 AD2d 422, 423; Campea v Mitra, 267 AD2d 190, 191; Stepanian v Goldstein, 239 AD2d 569, 570; Taylor v St. Vincent’s Med. Ctr. of Richmond, 236 AD2d 461, 462; Licausie v North Shore Orthopedic Group, 232 AD2d 612, 613; Seidman v Booth Mem. Med. Ctr., 202 AD2d 490, 491; cf. Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359).

CPLR 3212 does not permit summary judgment when genuine issues of fact remain about foreseeability and breach of duty.

Washington v. Albany Housing Authority · filed 2002-08-01

We therefore agree with Supreme Court that a genuine issue of fact exists regarding the foreseeability of the fatal fire, as well as issues of fact concerning whether or not defendant breached its common-law duty to maintain its premises in a reasonably safe condition. ... Thus, we find no error in Supreme Court’s denial of defendant’s motion for summary judgment (see, CPLR 3212; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439).

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

Quirino v. Educational Bus Trans, Inc. · filed 2002-11-25(b)

The medical evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212 [b]).

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

Fladell v. Board of Education Union Free School District 14 · filed 2002-12-23(b)

We agree with the Supreme Court that there are triable issues of fact (see CPLR 3212 [b]) as to whether the defendants breached a duty to provide adequate supervision, whether the playing field was negligently maintained, and whether such breach of duty or negligence was a proximate cause of the injuries sustained by the infant plaintiff (see Mirand v City of New York, 84 NY2d 44, 49-50).

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

Cho v. 401-403 57th Street Realty Corp. · filed 2002-12-24

With regard to plaintiffs’ breach of contract claim, Supreme Court properly determined that there are triable issues of fact precluding summary judgment as to whether defendants’ alleged failure to provide financial disclosure, as required by the parties’ prior stipulation, precluded plaintiffs from exercising ... the option, created by the stipulation, to repurchase shares in two closely held real estate corporations (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

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

Singh v. Velez · filed 2003-01-13(b)

Under the particular facts of this case, the Supreme Court properly determined that material issues of fact exist which preclude the granting of the defendant’s summary judgment motion (see CPLR 3212 [b]).

CPLR 3212(b) requires denial of summary judgment when an opposing affidavit raises a triable issue of fact.

Fauk v. Jenkins · filed 2003-01-21(b)

However, the affidavit of Dr. Leo Batash, which the plaintiff submitted in opposition to the motion, raised a triable issue of fact (see CPLR 3212 [b]).

CPLR 3212(b) permits summary judgment when there are no disputed issues of fact.

Swersky v. Swersky · filed 2002-11-25(b)

Further, in the absence of disputed issues of fact, the Supreme Court was warranted in granting summary judgment in favor of the defendant (see CPLR 3212 [b]).

Section 3212 permits summary judgment dismissing a complaint when there is no issue of fact.

Dual Degree Service Corp. v. Citibank, N.A. · filed 2002-12-16

Consequently, as there is no issue of fact, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint (see CPLR 3212).

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

Brooklyn Union Gas Co. v. Interboro Asphalt Surface Co. · filed 2003-03-17(b)

Brooklyn Union made a prima facie showing of entitlement to judgment as a matter of law on the issue of contractual indemnification, and Interboro failed to submit sufficient evidence to raise a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

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

Bavaro v. Guirguis · filed 2003-03-24

There are issues of fact requiring the denial of summary judgment (see CPLR 3212).

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

Levine v. Great Neck Union Free School District · filed 2003-04-07(b)

We agree with the Supreme Court that there exist triable issues of fact (see CPLR 3212 [b]) as to whether the defendant school district breached a duty to provide adequate supervision ... and. whether such negligence was a proximate cause of the infant plaintiffs injuries.

Under CPLR 3212(b), an opponent of summary judgment must show a triable issue of fact with admissible evidence, rather than conjecture or speculation.

Ray v. Brooklyn Union Gas · filed 2003-04-21(b)

There are no triable issues of fact (see CPLR 3212 [b]) as to whether negligence on its part was a proximate cause of the fire (see Farrah v Brooklyn Union Gas Co., 248 AD2d 584 [1998]). Where, as here, the moving party establishes that it is entitled to summary judgment, the party opposing the motion must demonstrate the existence of a triable issue of fact by admissible evidence, not mere conjecture, suspicion, or speculation (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

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

In re the Estate of McCormick · filed 2003-04-21(b)

The Surrogate’s Court properly denied those branches of the motion by Bankers which were for summary judgment dismissing objections 1, 2, 4 through 6, 10, and 14 as there exist triable issues of fact (see CPLR 3212 [b]).

Section 3212 permits denial of summary judgment when the opposing party raises a triable issue of fact after the movant makes a prima facie showing.

Donowski v. Astoria Federal Savings Bank · filed 2003-05-27(b)

After the defendant Astoria Federal Savings Bank (hereinafter the Bank) made out a prima facie case for summary judgment, the plaintiff demonstrated the existence of a triable issue of fact concerning whether the Bank should be estopped from denying that it promised to procure fire insurance covering the plaintiffs interest in the structure on the subject premises after it received notice that the plaintiffs insurance policy would be cancelled (see Gurreri v Associates Ins. Co., 248 AD2d 356 [1998]; Rogers v Town of lslip, 230 AD2d 727 [1996]). Accordingly, the Supreme Court properly denied that branch of the Bank’s cross motion which was for summary judgment dismissing so much of the complaint as sought to recover for damages to the structure on the subject premises insofar as asserted against it (see CPLR 3212 [b], [f|; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

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

Marques v. Conlon · filed 2003-02-24(b)

The Supreme Court properly denied the defendant’s motion for summary judgment since there are questions of fact as to whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see CPLR 3212 [b]; Brown v Nwakamma, 246 AD2d 568 [1998]).

Section 3212(b) permits summary judgment when clear contract language leaves no factual issue about the parties’ intent.

Lopez v. Fernandito's Antique, Ltd. · filed 2003-05-15(b)

Because the language in the lease and contract was clear on its face, the IAS court erred in holding that there were issues of fact as to the intention of the parties and in denying defendants’ motion for summary judgment (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

CPLR 3212 requires denial of summary judgment when issues of fact remain.

Gavey v. Gabbay · filed 2003-06-23

There are issues of fact with respect to the plaintiffs claim concerning title to the parcels of real property and the mortgage (see CPLR 3212). Accordingly, the plaintiffs motion for summary judgment on the complaint should have been denied.

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

Martinez v. City of New York · filed 2003-08-18(b)

However, the Supreme Court improperly granted the motion of Yonkers Contracting for summary judgment dismissing the third-party complaint insofar as asserted against it, as a triable issue of fact exists as to whether it was responsible for the cars parked on the sidewalk (see CPLR 3212 [b]; see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).

Section 3212 requires a summary judgment movant to show that no triable issue of fact exists; conflicting expert testimony on a material issue can defeat the motion.

Altamirano v. 343 E. 8th St. Assocs. · filed 2003-09-26

It is axiomatic that on a motion for summary judgment the court's role is to find issues, but not resolve them. ... Here, both parties have submitted conflicting expert testimony as to whether defendants violated one or both of these laws. This court cannot imagine a clearer example of a triable "issue of fact." Summary judgment is therefore inappropriate.

Under CPLR 3212(b), a party opposing summary judgment must raise a triable issue of fact after the movant makes a prima facie showing.

Mohammed v. Gonzalez · filed 2003-11-03(b)

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

Section 3212 requires defendants seeking summary judgment on a limitations defense to establish the accrual date as a matter of law.

Shafranek v. Long Island Processor, Inc. · filed 2003-05-29

This motion by defendant RBL & Associates pursuant to CPLR 3212 for summary judgment dismissing the complaint against it on the grounds that the plaintiffs action is time-barred is denied. ... These scant details cannot establish as a matter of law that the statute of limitations accrued in May 1997, or any other time before September when plaintiff was diagnosed. ... Defendants have failed to sustain their burden of proof, and thus the motions to dismiss are denied.

Section 3212(b) permits summary judgment when a plaintiff cannot identify what caused a fall and offers only speculation to establish causation.

Curran v. Esposito · filed 2003-09-08(b)

Thus, the plaintiff’s own deposition testimony that she did not know what caused the accident is fatal to her complaint (see CPLR 3212 [b]; ...). ... Therefore, the Supreme Court erred in denying the defendant’s motion for summary judgment.

Under CPLR 3212(b), summary judgment is warranted when the movant presents competent evidence in admissible form and the opposing party fails to raise a triable issue of fact.

McRae v. Sears, Roebuck & Co. · filed 2003-12-01(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see e.g. Caiola v Allcity Ins. Co., supra at 587). Accordingly, the defendant is entitled to summary judgment dismissing the complaint (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Dorkin v American Express Co., 43 AD2d 877 [1974]).

Section 3212 does not permit summary judgment when the movant fails to establish entitlement to judgment as a matter of law and the record shows triable issues of fact.

Koren-DiResta Construction Co. v. New York City School Construction Authority · filed 2003-12-02

Assuming, for argument’s sake, that, despite its untimeliness and our direction that the matter be retried, there is good cause to entertain that branch of SCA’s motion seeking summary judgment (see CPLR 3212 [a]), a grant of summary judgment to SCA would nonetheless be inappropriate inasmuch as the record made in support of the requested summary relief does not establish SCA’s entitlement to judgment as a matter of law but rather discloses the existence of triable issues of fact.

Section 3212 requires denial of summary judgment when the parties' proof leaves a material factual issue for trial.

American Express Travel Related Servs. Co., Inc. v. Seidenfeld · filed 2003-12-08

Both plaintiff and defendants have failed to provide sufficient proof that summary judgment should be awarded on the breach of contract and unjust enrichment claims against Shaya Seidenfeld. The issue of fact to be resolved is whether Shaya Seidenfeld received an agreement explaining his obligations under the account and whether use of the additional card made him personally liable for his own charges.

Section 3212(b) requires denial of summary judgment when a genuine issue of fact remains about the parties’ intent.

Navillus Tile, Inc. v. Turner Construction Co. · filed 2003-12-11(b)

As plaintiff raises genuine issues of fact as to the intent of the parties, the motion court erred in granting summary judgment (see CPLR 3212 [b]; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172 [1973] [if there is ambiguity in the terminology used and determination of intent of parties depends on choice among reasonable inferences to be drawn from extrinsic evidence, such determination to be made by a jury]).

Under Section 3212(b), admissible evidence opposing a summary judgment motion can raise a triable issue of fact that prevents judgment.

Otugh v. Sanicharan · filed 2004-01-26(b)

After the appellant established its prima facie entitlement to summary judgment, the admissible documentary evidence submitted in opposition raised a triable issue of fact (see CPLR 3212 [b]) as to whether the appellant did, in fact, own the subject taxicab.

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

2645 Nostrand Realty Corp. v. Yisroel · filed 2004-01-26

The Supreme Court properly determined that there are issues of fact requiring the denial of the plaintiff’s motion and the defendants’ cross motion for summary judgment (see CPLR 3212).

Section 3212 requires denial of summary judgment when a genuine triable issue of material fact exists.

Rose v. Am. Tobacco Co. · filed 2004-02-20

Here, the expert witnesses retained by each side raise triable issues in their affidavits regarding defendants' knowledge of the health hazards presented by smoking cigarettes and defendants' efforts to keep this information from the public, including Norma Rose, and the extent of Norma Rose's own awareness of these hazards. Summary judgment is a drastic remedy which deprives the litigant of her day in court and should not be granted where a genuine triable issue of material fact exists ( Andre v Pomeroy , 35 NY2d 361 [1974]).

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

AJ Contr. Co., Inc. v. Farmore Realty, Inc. · filed 2004-03-24

In light of the conflicting factual accounts regarding the improvements on the subject premises, the court denies PRG's motion for summary judgment.

Section 3212 permits summary judgment when the opposing party fails to show a serious issue of fact requiring trial.

Altegra Credit Co. v. Tin Chu · filed 2004-03-25

Plaintiff has failed to demonstrate that a serious issue of fact requires the denial of the motion for summary judgment.

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

Cowan v. Fish · filed 2004-03-29

The court's function on a motion for summary judgment is issue finding, not issue determination ( Schaufler v Mengel, Metzger, Barr & Company, LLP , 296 AD2d 742, 743) and where a genuine issue of fact exists, the summary judgment motion must be denied ( Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc. , 255 AD2d 793, 794). ... The motion for summary judgment is denied.