N.Y. C.P.L.R. § 3212

Summary judgment is denied when the opposing party raises triable issues of fact, even after the moving party makes a prima facie showing.

Laracuente v. Mora · filed 2004-04-19

In light of her chiropractor's affidavit which attests to objective tests performed and decreased ranges of motion to the Plaintiff's lumbar and cervical spines, this court finds that sufficient issues of fact have been raised to defeat the Defendants' request for summary judgment on the issue of serious injury.

Section 3212(b) requires a prima facie showing for summary judgment and denial if the opposing evidence raises a triable issue of fact.

Ravina v. Incorporated Town of Greenburgh · filed 2004-04-26(b)

The Town established, prima facie, that it did not receive prior written notice of the alleged condition, a prerequisite for maintaining an action against it arising from a snow or ice condition on its roadways (see Town Law § 65-a; Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Brooks v Village of Babylon, 251 AD2d 526 [1998]; Sloan v Village of Hempstead, 223 AD2d 632 [1996]; see also CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). While notice would not have been required if the Town created the condition though an affirmative act of negligence (see Amabile v City of Buffalo, supra at 474; Mayer v Town of Brookhaven, 266 AD2d 360, 361 [1999]), the evidence submitted by the plaintiff in opposition to the establishment of a prima facie case for summary judgment failed to raise a triable issue of fact as to whether the ice on which the plaintiffs vehicle allegedly slid and spun was formed when piles of snow created by the Town during a prior storm melted and refroze (cf. Grillo v Brooklyn Hosp., 280 AD2d 452 [2001]; Grizzaffi v Paparodero Holding Corp., 261 AD2d 437 [1999]; Roca v Gerardi, 243 AD2d 616 [1997]).

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

Gomez v. Needham Capital Group, Inc. · filed 2004-05-10

There are triable issues of fact with respect to liability for the subject accident (see CPLR 3212; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

CPLR 3212 does not permit summary judgment when triable questions of fact remain.

Daly v. Metropolitan Life Insurance · filed 2004-05-20

Inasmuch as there remain considerable questions of fact concerning the precautions taken by Met Life to safeguard plaintiffs’ personal information, at this juncture, summary judgment cannot be awarded.

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

Bhola v. Krivisky · filed 2004-05-24(b)

The Supreme Court correctly denied the plaintiffs cross motion for summary judgment. There are issues of fact warranting a trial (see CPLR 3212 [b]; Perez v Gerardi, 285 AD2d 454 [2001]; Camaro v AVR Realty Co., 259 AD2d 723 [1999]).

Section 3212 requires a summary judgment movant to show that no material factual issue remains; conflicting accounts that require a trial preclude judgment.

Bakis v. Levitin · filed 2004-06-07

The proponent of a summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact. ... Here, the parties have presented diametrically opposed versions of the nature and character of the transaction at issue. Under the circumstances presented, a proper disposition of this case can be made only after both parties have been afforded an opportunity to develop proof at trial regarding the critical question of whether the transaction is, in fact, a loan violative of the criminal usury statute as Defendants contend or an investment as Plaintiff argues.

Summary judgment may be granted when criminal convictions and allocutions leave no triable issue of fact in a severe abuse proceeding.

Matter of Javier T. (Edison G.) · filed 2004-06-09

By reason of the criminal convictions and criminal allocutions of the respondents in Supreme Court to charges arising from facts intimately related to the facts underlying the instant severe abuse petition, there are no triable issues of fact to be determined by the Family Court on the ultimate issue of whether the subject child Javier T. is a severely abused child.

CPLR 3212(b) requires a party seeking summary judgment to establish entitlement to judgment as a matter of law; the opposing party must raise a triable issue of fact.

American Building Supply Corp. v. Avalon Properties, Inc. · filed 2004-06-21(b)

Furthermore, Feldman established its prima facie entitlement to summary judgment as a matter of law by submitting evidence demonstrating that it was due $220,923.62 for materials furnished (see CPLR 3212 [b]). In opposition, National Union failed to raise a triable issue of fact.

Section 3212 precludes summary judgment when questions of fact remain about liability.

Mondel v. Wu · filed 2004-06-21

Questions of fact also remain as to whether a defective condition in the sidewalk was caused by the defendant's special use, and whether that condition caused the plaintiff's injuries, precluding summary judgment in defendant's favor.

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

Khan v. Fulton Street Realty Venture · filed 2004-11-08(b)

The appellant established a prima facie case for summary judgment, as it was undisputed that the plaintiff did not sustain a “grave injury.” In opposition, the plaintiffs deposition testimony raised a triable issue of fact (see CPLR 3212 [b]) as to whether there was a special employment relationship between him and the appellant (see Cameli v Pace Univ., 131 AD2d 419 [1987]), thereby barring the claim for common-law indemnification.

Under CPLR 3212(b), an affidavit from a person with knowledge that raises a triable issue of fact can defeat summary judgment.

DeLeonardis v. Brown · filed 2005-02-22(b)

The affidavit of Van Madison constituted sufficient proof by a person having knowledge of the facts to raise a triable issue of fact with respect to the terms of the oral agreement allegedly entered into by the parties (see CPLR 3212 [b]; Harbor Seafood v Quality Fish Co., 194 AD2d 713 [1993]).

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

Matos v. Long Island Railroad · filed 2005-04-11

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

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

Flynn v. Hanken · filed 2005-04-18(b)

The evidence submitted by the plaintiffs in opposition to the Town’s motion failed to raise a triable issue of fact (see CPLR 3212 [b]). Therefore, the Supreme Court properly granted that branch of the Town’s motion which was for reargument, and upon reargument, granted summary judgment dismissing the complaint insofar as asserted against the Town.

Under CPLR 3212(b), deposition testimony that raises a triable issue of fact can defeat a motion for summary judgment.

Khan v. Fulton Street Realty Venture · filed 2005-05-16(b)

In opposition, the plaintiffs deposition testimony raised a triable issue of fact (see CPLR 3212 [b]) as to whether there was a special employment relationship between him and the Wiz (see Cameli v Pace Univ., 131 AD2d 419 [1987]), thereby barring the claim for common-law indemnification.

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

Harris v. Stanley · filed 2005-08-04(b)

Here, even assuming that defendant established a prima facie entitlement to summary judgment, plaintiff put forth evidence sufficient to necessitate a trial (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Under CPLR 3212(b), an opposing expert affidavit that raises issues of fact can defeat summary judgment even if the movant met its initial burden.

Warnke v. Warner-Lambert Co. · filed 2005-08-11(b)

Here, assuming arguendo that defendant’s proof was sufficient to meet its initial burden on a summary judgment motion (see CPLR 3212 [b]), we find that the expert proof offered by plaintiff in opposition to defendant’s motion, namely, the sworn affidavit from engineer Vito Colangelo, was sufficient to create issues of fact.

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

Lamparelli Construction Co. v. Berkley Square of Hamburg, Inc. · filed 2005-09-30(b)

Although Greenauer submitted proof that its mortgage is entitled to priority over the mechanic’s lien of Lamparelli (see W.L. Dev. Corp. v Trifort Realty, 44 NY2d 489, 499 [1978]), Lamparelli raised triable issues of fact with respect to its entitlement to a release of Greenauer’s mortgage lien (see generally CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

CPLR 3212(b) precludes summary judgment when a triable issue of fact exists.

Lau v. City of New York · filed 2005-10-11(b)

A triable issue of fact exists which precluded the grant of summary judgment to the defendant Sweetbrook (see CPLR 3212 [b]).

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

Whitham v. Paragon Homes of Orange County, Inc. · filed 2005-10-17

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

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

Hyslop v. Lasusa · filed 2005-09-19(b)

There are questions of fact requiring the denial of summary judgment (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Under CPLR 3212(c), possible discrepancies in the amount owed do not preclude summary judgment on an otherwise established rent arrears claim.

Moskowitz v. Jorden · filed 2006-03-21(c)

Possible discrepancies as to the amount owed do not present issues of fact precluding summary judgment (CPLR 3212 [c]; ...).

Under CPLR 3212(b), an opposing party can defeat a supported summary judgment motion by offering proof sufficient to require a trial of a factual issue.

Giandana v. Providence Rest Nursing Home · filed 2006-05-30(b)

Upon meeting this burden, an opposing party may still defeat the motion with proof “sufficient to require a trial of any issue of fact” (CPLR 3212 [b]).

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

Rodgers v. City of New York · filed 2006-11-14(b)

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

Under section 3212(b), partial summary judgment may be granted when the moving party establishes entitlement to judgment as a matter of law and the opposing party fails to raise a triable issue of fact.

Allied-Lynn Associates, Inc. v. Alex Bro, LLC · filed 2006-11-17(b)

... and Alex Bro failed to raise a triable issue of fact to defeat that part of plaintiffs motion for partial summary judgment on liability against it (see CPLR 3212 [b]).

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

Fugazy v. Corbetta · filed 2006-11-28(b)

The Supreme Court erred in granting those branches of Corbetta’s cross motion which were for summary judgment dismissing the assault and battery and negligence causes of action insofar as asserted against him and, upon searching the record, awarding the plaintiffs summary judgment on the issue of liability against Romanello.

CPLR 3212 permits summary judgment only when the movant shows that no material issue of fact remains.

In re Suzanne RR. · filed 2006-12-14

Here, petitioner has failed to demonstrate the absence of any material issue of fact so as to warrant a grant of summary judgment.

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

Conner v. Battery Park City Authority · filed 2006-12-19

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

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

Squires v. Mumphery · filed 2007-01-09(b)

Moreover, the record does not present any issues of fact on this matter {see CPLR 3212 [b]).

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

Jackson v. Lefferts Heights Housing Development Fund Co. · filed 2007-03-13(b)

In opposition to the motion, the plaintiffs failed to raise a triable issue of fact (see CPLR 3212 [b]).

Section 3212(b) requires an opposing expert affidavit to raise a triable issue of fact to defeat summary judgment.

Johnson v. Nouveau Elevator Industries, Inc. · filed 2007-03-13(b)

The affidavit prepared by the plaintiff’s expert in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212 [b]).

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

Duckworth v. Village of Monroe · filed 2007-03-27(b)

The Supreme Court properly granted the motion. After the Laurers established, prima facie, that they did not create the defect which caused the plaintiffs accident, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]).

CPLR 3212(b) and (c) require denial of summary judgment when a factual issue remains for trial.

Bailer v. Guardian Life Insurance · filed 2007-01-16(b), (c)

Here, once the Supreme Court determined that a factual issue existed as to whether the plaintiffs alleged mental illness constituted a sufficient mitigating circumstance, the framed-issue hearing was not warranted and the motion for summary judgment should have been denied {see CPLR 3212 [b], [c]).

Summary judgment must be denied when triable issues of fact remain.

Youseflaleh v. Demedina · filed 2007-06-12

The Supreme Court properly determined that there are triable issues of fact requiring the denial of summary judgment (see CPLR 3212).

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

Scoppettone v. ADJ Holding Corp. · filed 2007-06-19(b)

In opposition to the motion, the plaintiffs 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 once the movant shows entitlement to judgment as a matter of law.

Kouros v. Mendez · filed 2007-06-26(b)

In opposition, the defendants failed to raise a triable issue of fact (see CPLR 3212 [b]). Accordingly, the Supreme Court properly granted summary judgment to the plaintiffs on the issue of liability.

Under CPLR 3212(b), a movant is not entitled to summary judgment when its own proof reveals a triable issue of fact.

Shin Sook Jin v. Y. Kwon · filed 2007-07-10(b)

The proof submitted by Ramsawak and Little Richie in support of that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them, on the ground that they were not at fault in causing the accident, revealed the existence of a triable issue of fact as to whether or not Ramsawak was negligent in the operation of the school bus owned by Little Richie.

Under CPLR 3212(b), opposing papers that raise a triable issue of fact defeat a motion for summary judgment.

Granados v. Cox · filed 2007-08-07(b)

In opposition to Cox’s prima facie showing of her entitlement to judgment as a matter of law, the plaintiffs opposition papers raised a triable issue of fact (see CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when the opposing party raises a triable issue of fact, even if the movant makes a prima facie case.

Dickson v. City of New York · filed 2007-09-27(b)

Although defendants made a prima facie case, plaintiffs raised a triable issue of fact in their opposition to defendants’ summary judgment motion; hence, the motion should have been denied {see CPLR 3212 [b]).

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

Segrell v. City of New York · filed 2007-10-23(b)

This testimony raised a triable issue of fact (see CPLR 3212 [b]) as to whether the appellants created the allegedly dangerous condition that caused the plaintiff to trip and fall (see Alekperova v Yuger, 29 AD3d 610, 611 [2006]).

A party opposing summary judgment must present evidence sufficient to raise a triable issue of fact.

Murray v. 600 East 21st Street LLC · filed 2007-11-30

In opposition to the motion, the plaintiff failed to present evidence sufficient to raise a triable issue of fact concerning what, if anything, the employer knew. Therefore, that part of the defendants’ motion seeking the dismissal of the claim for punitive damages is granted.

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

Montesinos v. Cote · filed 2007-12-18(b)

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

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

Sanchez v. Williamsburg Volunteer of Hatzolah, Inc. · filed 2008-02-19(b)

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

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

Agnew v. Corner Stone Baptist Church · filed 2008-03-04

There are issues of fact requiring the denial of summary judgment (see CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Under CPLR 3212(b), a movant’s own evidence can raise a triable issue of fact and defeat summary judgment.

Newberger v. Hirsch · filed 2008-03-18(b)

Notably, the affirmed medical report prepared by the movant’s orthopedic expert raised a triable issue of fact (see CPLR 3212 [b]) as to whether Neith Newberger sustained a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]).

Section 3212(b) permits summary judgment when the movant establishes entitlement to judgment as a matter of law and the opposition raises no triable issue of fact.

Garrett v. City of New York · filed 2008-04-22(b)

In opposition to the NYCTA’s establishment, prima facie, of its entitlement to judgment as a matter of law, neither the plaintiff nor the defendants City of New York and QNCC Electrical Contracting Corp. raised a triable issue of fact (see CPLR 3212 [b]) as to whether the NYCTA created the alleged defect which caused the plaintiff to fall.

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

Goodell v. Rosetti · filed 2008-06-05(b)

In reviewing these facts in the light most favorable to plaintiffs (see Horth v Mansur, 243 AD2d 1041, 1042 [1997]), we find that they have raised a triable issue of fact as to whether the October 2003 deed was delivered to Cathell with the intent to convey ownership or merely as a security device and, hence, whether defendant owned the subject property on the date of the accident. Thus, Supreme Court erred in granting summary judgment dismissing the complaint (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

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

LaFleur v. MLB Industries, Inc. · filed 2008-06-19(b)

Thus, MLB failed to create a triable issue of fact and Supreme Court properly granted Alltek’s cross motion for summary judgment dismissing the third-party complaint (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Under CPLR 3212, summary judgment is denied when the opposing party raises a triable issue of fact, even if the movant makes a prima facie showing.

Clarke v. Condon · filed 2008-06-24

The plaintiffs established their prima facie entitlement to summary judgment ... (see CPLR 3212). ... Here, the defendants raised a triable issue of fact as to whether the defendant driver exercised reasonable care under the circumstances (see Pfaffenbach v White Plains Express Corp., 17 NY2d 132 [1966]; Espinal v Sureau, 262 AD2d 523, 524 [1999]).

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

Morris v. City of New York · filed 2008-09-08

Summary judgment is a drastic remedy which should not be granted when there is doubt as to the existence of a triable issue of fact.

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

Levy v. Town of Huntington · filed 2008-09-09(b)

In this case, the evidence which the plaintiff submitted in opposition to the motion, including, inter alia, the affidavit of the plaintiffs engineering expert, raised a triable issue of fact (see CPLR 3212 [b]) as to whether the appellant created the defect through opening and subsequently repaving the roadway in question.

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

Britt v. Bustamante · filed 2008-10-28(b)

In opposition to the prima facie showing of entitlement to judgment as a matter of law made by the defendants Antonio L. Bustamante and County of Suffolk (hereinafter together the defendants), the plaintiff raised a triable issue of fact (see CPLR 3212 [b]) as to whether Bustamante, a police officer for the County, acted in reckless disregard for the safety of others at the time of the accident at issue here.

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

Martinez v. Ullah · filed 2008-09-30(b)

The Supreme Court properly denied the appellant’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]; Marques v Conlon, 302 AD2d 566 [2003]).

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

New York Schools Insurance Reciprocal v. Honeywell, Inc. · filed 2008-10-14(b)

In opposition, the plaintiff ... failed to raise a triable issue of fact sufficient to require a trial (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d at 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]).

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

Atlantic Express Transportation Corp. v. Weeks Marine, Inc. · filed 2008-11-26(b)

A motion for summary judgment must be denied if there are “facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]).

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

Feliciano v. Malik · filed 2008-12-23

The Supreme Court properly found that there are triable issues of fact requiring the denial of the appellants’ motion for summary judgment (see CPLR 3212).

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

Romano v. Omega Moulding Co. · filed 2008-12-23(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]). Accordingly, the Supreme Court should have granted the appellant landowner’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

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

Cavitch v. Mateo · filed 2009-01-13(b)

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

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

Weber v. Town of Hempstead · filed 2009-01-13(b)

However, the plaintiff raised a triable issue of fact (see CPLR 3212 [b]) as ... to whether the repair work which the defendant performed on the surface of the parking lot immediately resulted in the existence of the dangerous condition which caused the plaintiff to trip and fall (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Bohm v Town of Brookhaven, 43 AD3d 454, 456 [2007]). Therefore, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint.

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

Goth v. Tremble · filed 2009-02-19(b)

We further conclude, however, that defendant demonstrated the existence of at least one triable issue of fact which precludes summary judgment in plaintiff’s favor (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Section 3212(b) permits summary judgment when no factual issue requires a trial.

Lally v. Fasano · filed 2009-02-23(b)

Pursuant to CPLR 3212 (b), “If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” Here, it has been established that respondent is a licensee and it is uncontroverted that petitioner served respondent with a valid 10-day notice to quit. There are no questions of fact remaining that would necessitate the case going forward to trial. Therefore, petitioner is granted summary judgment and is awarded a judgment of possession with warrant of eviction stayed until March 31, 2009.

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

Jordan v. Vogel · filed 2009-02-26(b)

Since we find that the word “perimeter” is susceptible of more than one interpretation and, therefore, that the easement is not clear and unambiguous on its face, we conclude that plaintiffs created a triable issue of fact as to the location of the easement—and, specifically, whether any portion thereof is on Wallace’s property ... Therefore, Wallace’s motion for summary judgment should have been denied.

A party is entitled to summary judgment when it makes a prima facie showing and the opposing party fails to raise a triable issue of fact.

Sohayegh v. Sohayegh · filed 2009-03-24(c)

However, on their cross motion for summary judgment, the plaintiffs established, prima facie, that the statute of frauds barred the enforcement of that alleged oral agreement (see General Obligations Law § 5-703 [2]; CPLR 3212 [c]). In opposition, the defendant failed to raise a triable issue of fact as to whether that alleged agreement was enforceable (see Anostario v Vicinanzo, 59 NY2d 662, 663-664 [1983]). Accordingly, the Supreme Court properly granted the plaintiffs’ cross motion, and properly declared, inter alia, that the defendant had no interest in the subject property.

Section 3212 requires a summary judgment movant to show that no material factual dispute remains and that it is entitled to judgment as a matter of law.

Johnson v. Metropolitan Life Insurance · filed 2009-05-21(b)

“The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law.” ... Accordingly, it is ordered that the motion for summary judgment is denied; and it is further ordered that the cross motion for leave to amend is granted.

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

Rasheed-Waters v. Kawasaki Rail Car, Inc. · filed 2009-03-31

There are issues of fact requiring the denial of summary judgment to both parties on this appeal (see CPLR 3212).

Section 3212(b) allows summary judgment when the opposing party raises no triable issue of fact.

Robert Cohn Associates, Inc. v. Kosich · filed 2009-06-18(b)

In response, defendants have failed to raise any triable issue of fact that would warrant denial of plaintiffs motion for summary judgment (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Heritage Springs Sewer Works, Inc. v Boghosian, 61 AD3d at 1040-1041).

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

Harris v. APW Supermarkets, Inc. · filed 2009-06-23(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.

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

Waldman v. 853 St. Nicholas Realty Corp. · filed 2009-07-07

Moreover, triable issues of fact exist with respect to the actions taken by the majority shareholder at the time the stock purchase agreement was executed, which preclude the granting of summary judgment in the defendant’s favor.

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

Haeg v. County of Suffolk · filed 2009-07-21(b)

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

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

Peri Formwork Systems, Inc. v. Lumbermens Mutual Casualty Co. · filed 2009-08-04(b)

Since a triable issue of fact exists as to whether the subcontractor was owed any money and, if so, the amount, at the time the plaintiffs liens were filed, the plaintiff was not entitled to summary judgment (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Davila v. New York City Transit Authority · filed 2009-10-27(b)

The opposition to the motion submitted by Keyspan and the defendant Liberty Department Store, the only parties who opposed the motion, failed to raise a triable issue of fact (see CPLR 3212 [b]).

Section 3212(b) permits summary judgment when the movant makes a prima facie showing and the opponents fail to raise a triable issue of fact.

Biddy v. Vanmaltke · filed 2009-11-17(b)

In opposition to the motion, the plaintiff and the appellants’ codefendants 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 as a matter of law and the opposing evidence raises no triable issue of fact.

Yacovelli v. Pathmark Stores, Inc. · filed 2009-11-24(b)

The evidence which the plaintiff submitted in opposition to the defendant’s motion failed to raise a triable issue of fact (see CPLR 3212 [b]; Taylor v Jaslove, 61 AD3d 743, 744-745 [2009]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409, 411 [2006]; Chemont v Pathmark Supermarkets, 279 AD2d 545, 546 [2001]).

Under CPLR 3212(b), a movant who establishes prima facie entitlement to judgment as a matter of law is entitled to summary judgment if the opponent fails to raise a triable issue of fact.

Pink v. Half Moon Cooperative Apartments, South, Inc. · filed 2009-12-01(b)

Further, those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging tortious interference with an existing contract, tortious interference with a prospective contract, and tortious interference with a prospective business relationship should also have been granted, as the defendants demonstrated their prima facie entitlement to judgment as a matter of law and the plaintiff, in opposition, failed to raise a triable issue of fact (see generally CPLR 3212 [b]).

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

Diaz v. Sopade · filed 2010-01-05(b)

This was sufficient to raise a triable issue of fact as to whether negligence on the part of the appellant contributed to the occurrence (see CPLR 3212 [b]). Therefore, the Supreme Court properly denied the appellant’s motion for summary judgment.

Section 3212(b) permits an opponent of summary judgment to defeat the motion by raising a triable issue of fact after the movant makes a prima facie showing.

Morris v. Bianna, Inc. · filed 2010-01-26(b)

In opposition to the appellant’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether an employee of the appellant furnished an alcoholic beverage to Penzo while he was “visibly intoxicated” by submitting, inter alia, the deposition testimony of Paul DeLuca, the manager of the bar on the night of the occurrence (see CPLR 3212 [b]).

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

Strocchia v. City of New York · filed 2010-02-16(b)

In opposition, no triable issue of fact was raised (see CPLR 3212 [b]).

Under CPLR 3212(b), an affidavit that creates a feigned factual dispute cannot defeat summary judgment.

Blochl v. RT Long Island Franchise, LLC · filed 2010-02-23(b)

In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact (see CPLR 3212 [b]). The plaintiffs subsequent affidavit, in which she averred that she was “absolutely certain” that it was either water or paper on the floor which caused her to slip and fall, presented feigned issues of fact designed to avoid the consequences of her earlier deposition testimony and, thus, was insufficient to raise a triable issue of fact (see Hughes-Berg v Mueller, 50 AD3d 856, 858 [2008]).

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

George v. Suarez · filed 2010-03-09(b)

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

Under CPLR 3212(b), summary judgment may be granted when the movant shows entitlement to judgment and the opposition raises no triable issue of fact.

Johnson v. Burns · filed 2010-03-09(b)

The evidence submitted in opposition to the cross motion ... did not raise a triable issue of fact (see CPLR 3212 [b]; Lupowitz v Fogarty, 295 AD2d 576 [2002]).

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

Sierra v. Gonzalez First Limo · filed 2010-03-16(b)

Therefore, the evidence submitted by the plaintiffs failed to raise a triable issue of fact (see CPLR 3212 [b]), and the Supreme Court should have granted the defendants’ motion.

Section 3212 requires a court to deny summary judgment when material facts are disputed or conflicting inferences can be drawn from the evidence.

Ruiz v. Griffin · filed 2010-03-30

A motion for summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Scott v Long Is. Power Auth., 294 AD2d 348 [2002]; see Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2007]).

Section 3212(b) requires denial of summary judgment when opposing evidence creates a disputed issue of material fact.

Shapiro v. Boulevard Housing Corp. · filed 2010-02-11(b)

Summary judgment must be denied if evidentiary materials offered in opposition create a disputed issue of material fact (CPLR 3212 [b]).

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

DiSiena v. Giammarino · filed 2010-04-20(b)

In opposition, Endrulat and DiSiena failed to submit evidence sufficient to raise a triable issue of fact (see CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when the facts present an issue that must be tried.

Truncellito v. Carroll's Florist Corp. · filed 2010-04-22(b)

A motion for summary judgment must be denied if there are “facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]).

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

Sentino v. Valerio · filed 2010-04-27(b)

This testimony raised a triable issue of fact (see CPLR 3212 [b]) as to whether Espinal’s subsequent failure to avoid, a collision with Valerio’s vehicle proximately resulted from negligence on his part in driving at an excessive rate of speed in violation of Vehicle and Traffic Law § 1180 and in failing to pay attention to road conditions.

Under CPLR 3212, once the movant makes a prima facie showing, the opposing party must demonstrate a triable issue of fact.

Ferraro v. Ferraro · filed 2010-05-05

It is then incumbent upon defendant to demonstrate the existence of triable issues of fact, which he has clearly done here.

Under subsection (b), evidence opposing summary judgment that raises a triable issue of fact defeats the motion.

Santos v. City of New York · filed 2010-05-11(b)

Moreover, while the evidence submitted by the City established its prima facie entitlement to judgment as a matter of law, by demonstrating that the plaintiff could not identify the exact location of the accident, or the specific roadway defect which caused the accident (see Howe v Flatbush Presbyt. Church, 48 AD3d 419 [2008]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2006]), the evidence which the plaintiff submitted in opposition to the cross motions, including photographs of the alleged accident site, raised a triable issue of fact (see CPLR 3212 [b]).

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

Petrosillo v. Town of Huntington · filed 2010-05-25(b)

In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.

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

Rivera v. Fenix Car Service Corp. · filed 2010-05-25

Accordingly, given the existence of triable issues of fact concerning the alleged vicarious liability of Fénix for the active negligence of the driver of the offending vehicle, the motion of Fénix for summary judgment is hereby denied in its entirety.

Section 3212(b) does not permit summary judgment when the movant’s proof leaves a material issue of fact unresolved.

Sevenson Environmental Services, Inc. v. Sirius America Insurance · filed 2010-06-11(b)

Finally, we reject the further contention of Sirius that it is entitled to summary judgment on the issue of estoppel pursuant to CPLR 3212 (b). In opposition to plaintiffs’ cross motion on the issue of estoppel, Sirius submitted an affidavit from an employee of UTC stating that neither NIF nor Overdorf is an agent of Sirius. Sirius, however, failed to present evidence or deposition testimony from any person from its own company or from NIF addressing the precise nature of the relationship between the two companies.

Section 3212(b) requires denial of summary judgment when the facts show an issue that must be tried.

Payne v. Rivera · filed 2010-05-14(b)

Summary judgment must be “denied if any party shall show facts sufficient to require a trial of any issue of fact.” (CPLR 3212 [b].) Here, there are issues of fact which must be tried.

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

Alegria v. Metro Metal Products, Inc. · filed 2010-08-20

Even assuming, however, that defendants have made a prima facie showing for purposes of CPLR 3212, plaintiffs have raised triable issues.

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

Midgett v. Beth Israel Medical Center · filed 2010-10-29

An issue of fact remains about the urgency of the situation, thus precluding summary judgment.

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

Sarno v. Kelly · filed 2010-11-30(b)

In opposition to the appellants’ showing, the plaintiffs failed to raise a triable issue of fact (see CPLR 3212 [b]). Therefore, the Supreme Court should have granted the appellants’ motion for summary judgment dismissing the strict liability cause of action insofar as asserted against them.

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

Brite v. Miller · filed 2011-03-08(b)

The admissible evidence which the plaintiff presented in opposition to the defendant’s motion did not raise a triable issue of fact (see CPLR 3212 [b]; Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Vilomar v Castillo, 73 AD3d 758, 759 [2010]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]).

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

Ortiz v. Winig · filed 2011-03-31(b)

Based upon the allegations contained in that affidavit, together with the fact that the child had resided with the grandmother since birth, Family Court properly determined that the grandmother had made a prima facie showing of the father’s unfitness or other extraordinary circumstances and had raised issues of fact sufficient to warrant denial of the father’s cross motion (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 560 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Matter of La Bier v La Bier, 291 AD2d 730, 732-733 [2002], lv dismissed 98 NY2d 671 [2002]).

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

Hartman v. Goldman · filed 2011-05-03(b)

As triable issues of fact exist with respect to the remaining portion of the complaint, the Supreme Court properly declined to award summary judgment to either the plaintiffs or the defendant (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

CPLR 3212 does not permit summary judgment when the evidence leaves a material question of fact about the condition that caused the injury.

Portillo v. New York City Transit Authority · filed 2011-05-12

Defendant also moved for dismissal of the complaint pursuant to CPLR 3212, arguing that the gap between the train and the platform was within permissible limits. ... This factual assertion also creates a material issue of fact on the question of whether the car plaintiff was riding in stopped on curved or tangent track.

Section 3212(b) requires a disputed factual question about whether a promise was made to be resolved by the trier of fact rather than on summary judgment.

Budhu v. Budhu · filed 2011-08-23(b)

Although Mohan claims that Parbatee promised to hold the property in trust for him, Parbatee directly opposes this assertion in her affidavit. Where there is a question of fact as to whether a promise existed, the question must be reserved for the trier of facts.

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

Devito v. Centennial Elevator Industries, Inc. · filed 2011-12-06(b)

In opposition, the plaintiff failed to raise a triable issue of fact as to the defendant’s actual or constructive notice (see CPLR 3212 [b]).

Section 3212 does not support summary judgment on defamation claims when the plaintiffs’ facts could support a defamatory meaning and the asserted defenses do not resolve the claims.

Gosden v. Elmira City School District · filed 2011-12-08

We agree with Supreme Court that plaintiffs set forth sufficient allegations and facts to avoid dismissal under either CPLR 3211 or CPLR 3212. ... Similarly, the various defenses asserted by defendants do not provide a basis for summary disposition of plaintiffs’ defamation claims at this point in the litigation.

Section 3212 precludes summary judgment when the opposing party’s evidence raises a material issue of fact.

Board of Managers v. Cooper · filed 2012-02-16

In opposition to plaintiffs motion for summary judgment, defendants submitted substantial evidence which showed that a material issue of fact existed as to whether the Board was legitimately constituted or had authority to assess and collect common charges.

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

Ocasio v. MHR Management, Inc. · filed 2012-04-10

The Supreme Court properly determined that there are triable issues of fact requiring the denial of the defendants’ motion for summary judgment dismissing the complaint (see CPLR 3212).

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

Recinos v. Priamo · filed 2012-04-10(b)

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

Under CPLR 3212(b), triable issues of fact preclude summary judgment when the evidence is viewed in the light most favorable to the nonmoving party.

Kumar v. Kumar · filed 2012-06-28(b)

Viewing this evidence in the light most favorable to the nonmoving party with respect to each summary judgment motion, we find that triable issues of fact exist which preclude summary judgment (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [2011]).

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

In re Jastrzebski · filed 2012-07-25

The opposition papers, including the affirmation by the attorney for Darik, raised triable issues of fact, inter alia, as to whether the sale of the policy constituted a breach of James’s duty of good faith.

Section 3212 requires the court to give the nonmoving party favorable inferences and deny summary judgment when factual or credibility questions require a trial.

Argueta v. Thind · filed 2012-09-28

On a motion for summary judgment, the court must accept as true the evidence presented by the non-moving party and give the non-moving party the benefit of every favorable inference that may be drawn from the pleadings and proof. Summary judgment is inappropriate where questions of fact or credibility are raised that require a trial.

Under CPLR 3212(b), an opponent who raises a triable issue of fact on liability defeats summary judgment on that issue.

Raguso v. Ubriaco · filed 2012-07-05(b)

Furthermore, in opposition to the defendant’s prima facie showing that the accident did not result from negligence on his part, the plaintiff raised a triable issue of fact on the question of liability (see CPLR 3212 [b]; Alexandre v Dweck, 44 AD3d 597, 597-598 [2007]).

Summary judgment must be denied when the opposing party presents evidence raising a question of fact, even if the moving party has made a prima facie showing.

Roohan v. First Guarantee Mortgage, LLC · filed 2012-07-05

Even assuming Silipigno made a prima facie showing of entitlement to summary judgment, plaintiff has presented evidence sufficient to raise a question of fact regarding whether Silipigno was the “equitable owner[ ]” of First Guarantee (Guilder v Corinth Constr. Corp., 235 AD2d at 619; see Teachers Ins. Annuity Assn. of Am. v Cohen’s Fashion Opt. of 485 Lexington Ave., Inc., 45 AD3d 317, 318 [2007]; see also Gateway I Group, Inc. v Park Ave. Physicians, P.C., 62 AD3d 141, 148 [2009]; cf. Fantazia Intl. Corp. v CPL Furs N.Y., Inc., 67 AD3d 511, 512-513 [2009]).

Section 3212 requires a summary judgment movant to make a prima facie showing of entitlement to judgment; a triable issue of fact defeats the motion.

Oviedo v. Weinstein · filed 2013-01-23

Furthermore, although Salem met his prima facie burden of establishing that he did not depart from good and accepted practice ... the plaintiff raised a triable issue of fact as to whether he departed from good and accepted practice by recommending and implementing a contraindicated treatment plan.

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

Sutin v. Pawlus · filed 2013-04-25(b)

However, disregarding that opinion, plaintiff nevertheless demonstrated, through Ippoliti’s affidavit, that a question of fact exists as to defendant’s involvement, if any, in the accident and, as such, the court properly denied defendant’s motion for summary judgment (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Bergstrom v McChesney, 92 AD3d at 1126).

An asserted offset for a tax overpayment on another property does not preclude summary judgment in a tax lien foreclosure; the amount owed may be determined by a referee.

American Tax Funding, LLC v. Saita · filed 2013-06-06

We also reject defendants’ contention that Supreme Court erred in granting summary judgment to plaintiff because a material issue of fact was raised as to whether they were entitled to an offset for a purported tax overpayment to plaintiff with regard to a different property. Even accepting as true defendants’ claim of entitlement to an offset, the proper remedy is an order of reference to determine the amounts owed (see 1855 E. Tremont Corp. v Collado Holdings LLC, 102 AD3d 567 [2013]), which is precisely what Supreme Court ordered here.

CPLR 3212 requires denial of summary judgment on a claim’s merits when material factual disputes remain.

Goddard v. Martino · filed 2013-06-24

Defendants’ motion for summary judgment on the merits of any Civil Service Law § 106 claim that may exist is denied because there are material issues of fact on that substantive claim.

Section 3212 permits denial of summary judgment when evidence of asbestos exposure raises a question of fact.

Frieder v. Long Island Railroad · filed 2013-05-17

Defendants the Long Island Railroad and the Metropolitan Transportation Authority (collectively, LIRR) now move pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against them. ... While plaintiffs have not shown that Mr. McCollum ever personally entered the diner or came into contact with Mr. Frieder, his testimony, in conjunction with the testimonies of Messrs. Frieder and Muckian, creates a question of fact whether LIRE workers with contaminated clothes entered the diner and exposed Mr. Frieder to asbestos.

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

GMAC, LLC v. Ray · filed 2013-10-30

The Supreme Court properly determined that there are triable issues of fact requiring the denial of the appellant’s motion, made jointly with the defendant Jacqueline Ray, for summary judgment dismissing the complaint insofar as asserted against them (see CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Section 3212(b) requires denial of summary judgment when facts are sufficient to require a trial on any issue of fact.

Huertas v. United Parcel Service, Inc. · filed 2013-10-31(b)

A motion for summary judgment must be denied if there are “facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]).

Section 3212 does not permit summary judgment when the evidence leaves an issue of fact requiring trial.

Atsiki Realty LLC v. Munoz · filed 2013-11-12

While proof of certain payments was submitted in support of respondents’ cross motion, the documents are insufficient to establish an overpayment at this juncture. This is an issue of fact which requires a trial. As such, respondents’ cross motion which seeks partial summary judgment as to petitioner’s liability for an overcharge is denied.

CPLR 3212(b) precludes summary judgment when a factual dispute prevents judgment as a matter of law.

Springer v. 121 Varick Twelfth Floor, LLC · filed 2013-12-03(b)

In this case involving an alleged computational error made at the closing for the sale of a cooperative unit, the motion court properly determined that there are issues of fact precluding an award of judgment as a matter of law (see CPLR 3212 [b]).

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

McManus v. Lessard · filed 1996-03-18(b)

The plaintiff has failed to raise triable issues of fact (see, CPLR 3212 [b]) as to whether the defendants breached a duty which was owed him or whether the alleged breach was the proximate cause of his injuries.

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

USAA Casualty Insurance v. Effron/Love Oil Corp. · filed 1996-03-18(b)

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

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

Comiskey v. Blitz · filed 1996-06-03(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 denial of summary judgment when the opposing party raises a triable issue of fact.

Sanchez v. Goodwill Industries of Greater New York & Northern New Jersey, Inc. · filed 2014-04-02(b)

However, in opposition, the plaintiff raised a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Goodwill.

CPLR 3212 requires a summary judgment movant to show entitlement to judgment as a matter of law; a motion must be denied if a triable issue of fact remains.

Q.C. v. L.C. · filed 2014-10-07

The court finds that the parties’ respective submissions couch the immediate issue of the necessity of further fact-finding as analogous to the granting of summary judgment, in this case to defendant, pursuant to CPLR 3212. ... This court finds that defendant has not met her burden that there are no issues of fact that require further inquiry.

Section 3212(b) bars summary judgment when a triable issue of fact remains, even if the movant has met its initial burden.

HarkervGuyther · filed 2014-10-30(b)

Moreover, even if plaintiff had ... been deemed to have met his prima facie burden, defendant's contention that she did not act with any fraudulent or wrongful intent and that she believed that, as a member of the company, she was fully authorized to make the disputed withdrawal gives rise to triable issues of fact barring summary judgment as to whether her conduct constituted "substantial misappropriation" providing grounds to terminate her employment (see RWI Acquisition LLC v Todd, 2012 Del Ch LEXIS 125, *28-29, 2012 WL 1955279, *7 [Del Ch May 30, 2012]; see generally CPLR 3212 [b]).

Under CPLR 3212(b), summary judgment is denied when triable issues of fact remain, even if the movant met her initial burden.

BULLUCK, TYLER v. FIELDS, MARYANNE E. · filed 2015-10-09(b)

Even assuming, arguendo, that defendant met her initial burden of establishing that she had installed smoke detectors in the residence (see Verizon N.Y., Inc. v Garvin, 13 NY3d 851, 852; see generally CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562), we conclude that there are triable issues of fact whether those smoke detectors were functioning properly on the night of the fire (see Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 857, 858; see generally McKnight v Coppola, 113 AD3d 1087, 1087-1088), and whether “a properly positioned smoke detector would have given adequate warning of fire” to plaintiff (Lein v Czaplinski, 106 AD2d 723, 725).

CPLR 3212 permits summary judgment when the moving party shows that no factual issue remains for the court to decide.

Matter of Ryan v. Nolan · filed 2015-12-10

On this basis, we agree that the mother carried her initial burden of demonstrating that the parties had settled their custody dispute and that there remained no issues of fact for the court to decide (see CPLR 3212; Family Ct Act § 165 [a]; Matter of La Bier v La Bier, 291 AD2d 730, 732-733 [2002], lv dismissed 98 NY2d 671 [2002]; Matter of Patricia YY. v Albany County Dept. of Social Servs., 238 AD2d 672, 673 [1997]).

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

Ader v. Guzman · filed 2016-01-13(b)

In that regard, in opposition to the plaintiffs’ prima facie showing that they surrendered possession of the premises shortly after the lease commenced, and abandoned any personal belongings remaining on the premises, Guzman ... failed to raise a triable issue of fact demonstrating that the plaintiffs remained on the premises for the entire term of the lease or for any additional time thereafter (see CPLR 3212 [b]; ...).

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

Fontana v. New Econo Laundromat Inc. · filed 2016-01-14

In the case at hand, questions of material fact remain as to whether individual defendant Kyung H. Bae was acting within the scope of his employment, as the manager, sole employee and minority owner of corporate defendant New Econo as he drove a vehicle registered to the business address and owned by majority shareholder of corporate defendant, as he purchased flourescent light bulbs from Ace Hardware. Accordingly, it is hereby ordered, that moving defendant New Econo’s motion for summary judgment is hereby denied.

Section 3212 requires a party seeking summary judgment to show entitlement to judgment as a matter of law by eliminating material fact disputes.

New Millennium Med. Imaging, P.C. v. American Tr. Ins. Co. · filed 2016-03-01

Here, American Transit failed to establish its entitlement to summary judgment, because its own papers presented two different accident dates, March 17, 2012 and April 2, 2012.

Under section 3212, factual disputes about negligence preclude summary judgment on liability.

Barcacel v. City of Yonkers · filed 2016-05-04

The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the nonmoving party. ... Here, given the expert testimony of the obstructed line of sight of the driver, the lighting condition, and the other circumstances, issues of fact exist as to whether the defendants were negligent.

CPLR 3212 requires denial of summary judgment when conflicting medical expert opinions raise a triable issue of fact.

Kanter v. Mercury Cas. Co. · filed 2016-06-06

Contrary to defendant's contention, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant's motion seeking summary judgment dismissing the complaint was properly denied ( see Zuckerman v City of New York , 49 NY2d 557 [1980]).

Section 3212 does not permit summary judgment on settlement reasonableness when the inquiry is too fact-laden to resolve on the motion.

J.P. Morgan Securities Inc. v. Vigilant Insurance Co. · filed 2016-07-07

Although the court determines that the insurers fail to raise a triable issue that they have a valid defense based upon Bear Stearns’ failure to obtain their consent prior to settling with the SEC and the Pflugrath action, the court cannot determine at this juncture whether the settlements entered into were reasonable, which is a fact-laden inquiry, ill-suited for summary disposition.

Section 3212(b) precludes summary judgment when a dispute over the amount due presents a triable issue of fact.

Auto-Chlor of NYC v. Mount Fishtail, Inc. · filed 2016-07-08(b)

With respect to plaintiff's first cause of action, which was for the rent that was outstanding at the time when the dishwashing machine was repossessed, as the parties disagreed as to the amount due, the Civil Court correctly concluded that there remained a triable issue of fact, thus precluding an award of summary judgment in favor of plaintiff ( see CPLR 3212 [b]).

Section 3212 does not permit summary judgment when a material issue of fact remains for trial.

Quality Health Prods., Inc v. Geico Gen. Ins. Co. · filed 2016-09-27

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the supplies at issue ( see Zuckerman v City of New York , 49 NY2d 557 [1980]).

Summary judgment is properly denied when a triable issue of fact remains.

North Bronx Med. Health Care v. Auto One Ins. Co. · filed 2016-11-01

Upon a review of the record, we find that, as to both claims at issue, there is a triable issue of fact regarding medical necessity ( see Zuckerman v City of New York , 49 NY2d 557 [1980]). Consequently, the branch of defendant's motion seeking summary judgment was properly denied.

Section 3212(b) requires denial of summary judgment when a triable issue of fact arises, except as to damages; subsection (c) does not authorize a hearing to resolve disputed merits issues.

KNET, Inc. v. Ruocco · filed 2016-12-28(b), (c)

The Supreme Court erred in conducting a hearing. CPLR 3212 (c), which, on a motion for summary judgment, authorizes a trial of certain issues not related to the merits or related to damages, was not applicable here (cf. Deep v Boies, 121 AD3d 1316, 1323 [2014]). Where, as here, a triable issue of fact (except as to damages) arises on a motion for summary judgment, the motion must be denied pursuant to CPLR 3212 (b) (see Stowell v Berstyn, 26 AD2d 828 [1966]).

A party opposing summary judgment must present evidence that raises a triable issue of fact; unsupported assertions are insufficient.

Progresso Ventures, LLC v. Mazzola · filed 2017-03-15

The only evidence submitted are self-serving affidavits by the Guarantors and emails from Mazzola informing [*2] Progresso about potential investments that were available, which are insufficient to raise a triable issue as to the Guarantors' purported defense (Lawlor Aff., Exs. H, I, J).

Section 3212 requires denial of summary judgment when the submissions leave a triable issue of fact.

Splash, LLC v. Shullman Family Ltd. Partnership · filed 2017-04-20

The court declines to grant summary judgment on the basis that plaintiffs have improperly named Russell Speeder’s Car Wash, LLC as a defendant. Whether plaintiffs sued the wrong corporate entity is a triable issue of fact, as not capable of resolution on these submissions.

Section 3212 requires denial of summary judgment in a derivative neglect proceeding when triable factual issues require a hearing.

In re N.H. · filed 2017-05-03

Thus, the court finds triable issues of fact exist to warrant a hearing as to whether the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as well as whether the mother has ameliorated the underlying conditions which led to the prior neglect adjudications. ... Accordingly, the court denies the Attorney for the Child’s motion for summary judgment.

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

Olenick v. City of New York · filed 2017-05-04

Summary judgment is a drastic remedy that should only be granted when there are no triable issues of fact (Bonaventura v Galpin, 119 AD3d 625 [2d Dept 2014], citing Andre v Pomeroy, 35 NY2d 361 [1974]). ... The circumstances here present questions of fact which must be submitted to a jury. Accordingly, defendant’s motion for summary judgment and to dismiss the complaint is denied in entirety.

Section 3212 requires denial of summary judgment when the record contains evidence sufficient to create an issue of fact.

Palmeri v. Willkie Farr & Gallagher LLP · filed 2017-07-25

Indeed, the record contains evidence sufficient to create an issue of fact as to whether defendant breached its fiduciary obligations to plaintiff after June 2009 and well into June 2011 during its ongoing representation of the Ramius parties.

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

Tam Med. Supply Corp. v. Hereford Ins. Co. · filed 2017-09-15

While defendant made a prima facie showing that it had not received the requested verification, the affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant ( see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 [2008]). As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant's motion for summary judgment dismissing the complaint as premature ( see Compas Med., P.C. v Praetorian Ins. Co. , 49 Misc 3d 152 [A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

Adelaida M. Laga, PT v. Hereford Ins. Co. · filed 2017-10-27

As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant's motion for summary judgment dismissing the complaint as premature ( see Compas Med., P.C. v Praetorian Ins. Co. , 49 Misc 3d 152 [A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Section 3212(b) precludes summary judgment when material factual issues remain.

26th LS Series Ltd. v. Brooks · filed 2017-12-05(b)

The court properly recognized that plaintiff had not made this showing as a matter of law, given material issues of fact as to whether or when the Ruby/Teleios transaction closed, what if any consideration may have been paid for the notes, and why new notes, payable to Teleios, were apparently not issued (see CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Cadlerock Joint Venture II, L.P. v Baddoo, 38 Misc 3d 133[A], 2013 NY Slip Op 50053[U] [App Term, 1st Dept 2013]).

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

Matter of Gallardo · filed 2018-05-01

Summary judgment should be granted only where it is clear that no triable issue of fact exists (Matter of Goldberg, 180 AD2d 528). ... Both sides make compelling and zealous arguments regarding the intent of the parties with respect to the terms and conditions of the Separation Agreement and have established triable issues of fact.

Section 3212(b) precludes summary judgment when unresolved factual issues bear on a claim's governing requirements.

Dunn v. County of Niagara · filed 2018-05-04(b)

Here, the court erred in granting summary judgment to defendant while still finding that there are issues of fact that bear on the applicability of Public Officers Law § 18 to defendant's claims ( see generally CPLR 3212 [b]; Zuckerman v New York , 49 NY2d 557, 562 [1980]).

Section 3212 permits summary judgment only when there is no doubt that no triable issue of fact exists.

Aguilar v. City of New York · filed 2018-06-28

It is well settled that summary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues ( see Andre v Pomeroy , 35 NY2d 361, 364 [1974]; Martin v Briggs , 235 AD2d 192, 196 [1st Dept 1997]).

Section 3212 requires denial of summary judgment when the opposing party raises triable issues of fact, even if the movant met its initial burden.

Northland E., LLC v. J.R. Militello Realty, Inc. · filed 2018-07-06

Even assuming, arguendo, that JRMR met its initial burden with respect to the fraud cause of action, we conclude that plaintiffs raised triable issues of fact sufficient to defeat that part of the motion.

Summary judgment must be denied when the opposing party raises triable issues of fact, even if the moving party makes a prima facie showing.

Tiberg v. Strebel-Eichner · filed 2018-08-08

"Any party may move for summary judgment in any action, after issue has been joined" (CPLR 3212[a]). ... Although the plaintiff met her prima facie burden of proof that the defendant failed to yield the right of way, and that such failure was a proximate cause of the accident ( see Rodriguez v City of New York , 31 NY3d 312), the defendant's opposition raised triable issues of fact, inter alia, as to which vehicle entered the intersection first, and which vehicle had the right of way. Therefore, the plaintiff's motion for summary judgment on the issue of liability should have been denied ( see Poon v Nisanov , 162 AD3d 804).

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

Milone v. US Bank Natl. Assn. · filed 2018-08-15

Accordingly, while the plaintiff, in support of her cross motion, established her prima facie entitlement to summary judgment on her RPAPL 1501(4) cause of action, US Bank's timely de-acceleration notice raises a triable issue of fact requiring the denial of the plaintiff's cross motion.