N.Y. C.P.L.R. § 3212

Section 3212 permits summary judgment when the opposing party raises no triable issue of fact, even if actual damages still require proof.

Falchook Markets, Inc. v. Warner Reciprocal Insurers · filed 1977-10-13

In response to plaintiffs’ motion for summary judgment in an action on a fire insurance policy issued by Warner Reciprocal Insurers, no triable issue of fact as to the existence and ownerhip of the policy by Falchook Markets, Inc., nor as to whether Falchook was bound by the mortgagee’s unauthorized tender of the policy for cancellation, was created by the insurer, and the determination by the Appellate Division granting summary judgment to Falchook will not be disturbed (CPLR 3212; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.05). However, only provable damages may be recovered and since no proper proof of the actual damage was submitted, the matter should be remitted for a determination of damages.

CPLR 3212(b) requires summary judgment unless the opposing party shows facts sufficient to require a trial on an issue other than damages.

Union Station Restaurant, Inc. v. North American Co. · filed 1977-11-04(b)

A motion for summary judgment shall be granted unless a party shows facts sufficient to require a trial on any issue of fact other than that of damages (CPLR 3212, subd [b]). North American has failed to raise a triable issue with respect to the question of mailing of the notice of cancellation to plaintiffs, since it neither alleges a mailing nor presents evidentiary proof of mailing.

Section 3212 requires denial of summary judgment when contradictory evidence creates a triable issue of fact.

Katz v. Powers · filed 1978-01-10

The plaintiff’s motion for summary judgment is denied because the documentary evidence submitted is contradictory. The complaint seeks $1,500 and the plaintiff’s affidavit states that $2,000 is owing. This discrepancy creates a triable issue of fact.

Under CPLR 3212(b), a defendant’s affidavit disputing her signature on the document underlying a claim raises a triable issue of fact.

Armstrong Rubber Co. v. Autotransformation, Inc. · filed 1978-03-01(b)

In her answer she denies that she executed the guarantee and in her affidavit in opposition to the motion she affirmatively asserts that the signature thereon is not hers. Moreover, she avers that she has no knowledge as to how her purported signature came to appear on the document. Since plaintiff’s third cause of action is based solely upon the obligation arising from the guarantee, defendant Kathy Tantalo has raised a triable issue of fact.

Section 3212(b) does not warrant dismissing a complaint on the plaintiff's summary judgment motion when the complaint remains viable; factual disputes also require denial of the plaintiff's motion.

Rubenstein v. Cosmopolitan Mutual Insurance · filed 1978-03-20(b)

On the plaintiffs motion for summary judgment, Special Term dismissed the complaint under CPLR 3212 (subd [b]) and also dismissed as moot the motions for summary judgment made by Cosmopolitan against the bank, by the bank against the owner and by Sutton against Cosmopolitan. ... It was therefore error to dismiss the complaint. The plaintiffs motion for summary judgment was properly denied as there are issues of fact as to the alleged forgery and as to knowledge or neglect on the part of the plaintiff or her attorney.

Section 3212(b) requires denial of summary judgment when a factual issue must be resolved at trial.

Financial & Real Estate Consulting Co. v. State · filed 1978-05-25(b)

When the intent must be gleaned from evidence in controversy or inferences outside the written words of the instrument a question of fact is presented and summary judgment will not lie.

Section 3212 requires denial of summary judgment when triable issues of fact have been raised.

Drake v. City of Rochester · filed 1978-06-05

The motion for summary judgment must be denied because triable issues of fact have been raised.

Section 3212(b) allows a court to decide a summary judgment motion on the law when the submitted facts are undisputed and sufficiently developed.

Pavone v. Aetna Casualty & Surety Co. · filed 1977-10-04(b)

The facts contained in both the plaintiffs amended complaint and her counsel’s affidavit are uncontroverted and are sufficiently set forth in the papers to enable the court to make a determination upon the law (CPLR 3212, subd [b]).

Section 3212(b) permits summary judgment for a party when no material or triable issue of fact remains.

Bloor v. State · filed 1978-03-30(b)

Claimant is therefore entitled to summary judgment in this action, as no material or triable issues of fact remain (CPLR 3212, subd [b]; Vern Norton, Inc. v State of New York, 27 AD2d 13; Flynn v State of New York, 53 Misc 2d 929).

Section 3212(b) permits summary judgment dismissing a counterclaim when there is no indication that the claimant can establish its alleged breach or malpractice.

H. R. Wilson & Associates v. Town of Genoa · filed 1978-04-14(b)

Finally, in the absence of any indication that plaintiff violated the terms of its agreement with the defendant or that it was guilty of malpractice, plaintiff is entitled to summary judgment dismissing the counterclaim (see CPLR 3212, subd [b]).

CPLR 3212(b) requires a summary judgment movant to show that no defense exists or that the defense lacks merit; a conclusory affidavit is insufficient.

St. Paul Industrial Park, Inc. v. New York State Urban Development Corp. · filed 1978-05-19(b)

Finally, CPLR 3212 (subd [b]) requires the party seeking accelerated judgment to "show that there is no defense to the cause of action or that * * * the defense has no merit.”

Section 3212 does not permit summary judgment when a material factual dispute remains, even if another fact is undisputed.

American Hospital Supply Corp. v. Facilities Development Corp. · filed 1978-06-08

Because there is no doubt that the defendant in fact approved the single core design incorporating one and seven-eighths-inch particle board, Special Term granted American summary judgment pursuant to CPLR 3212. This was error.

On a CPLR 3212 motion involving a proposed cause of action, the court may examine its elements and whether the alleged facts could support relief at trial.

Chin v. American Telephone & Telegraph Co. · filed 1978-07-17

Although it does not appear that this doctrine has been recognized in this State, it is appropriate, on a motion of this nature, to examine the elements of the cause of action to determine whether the complaint alleges sufficient facts upon which relief might be granted at trial.

Section 3212(b) permits summary judgment when a cause of action or defense is sufficiently established to warrant judgment as a matter of law.

State Farm Mutual Auto Insurance v. Coppersmith · filed 1978-11-24(b)

The remedy of summary judgment may be granted where, in the words of the statute, "the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” (CPLR 3212, subd [b].) ... Accordingly, this court believes that State Farm has failed to establish its cause of action as a matter of law, and that summary judgment should be granted to the defendants.

CPLR 3212(a) permits a summary judgment motion that is not barred by the timing rule for a motion to dismiss under CPLR 3211(e).

Dixon v. Sheriff of Suffolk · filed 1979-03-05(a)

However, the defendant’s motion was actually for summary judgment and was not untimely (see CPLR 3212, subd [a]).

CPLR 3212(b) permits summary judgment when the pleadings raise no issue requiring trial and the allegations, even if accepted as true, do not establish a claim.

Bruno v. Codd · filed 1978-07-20(b)

To the extent appealed from, and to the extent not mooted as hereinafter set forth, order, Supreme Court, New York County, entered August 25, 1977, reversed, on the law, and the cross motions of defendants-appellants made severally to dismiss the complaint, whether based on CPLR 3211 (subd [a], par 7) or CPLR 3212 (subd [b]), granted, without costs and without disbursements. ... There are no issues framed by the pleadings requiring a trial because, even accepting plaintiffs’ allegations at face value, they do not make out a case.

Section 3212 requires denial of summary judgment when factual questions warrant a trial.

Salonen v. Barbella · filed 1978-11-06

We believe that the pleadings raise questions of fact sufficient to warrant a trial and hence, the order must be reversed.

Section 3212 permits summary judgment when the moving party presents sufficient evidentiary facts and the opposing party fails to show a triable issue of fact.

National Commercial Bank & Trust Co. v. Niles · filed 1978-11-30

The plaintiff has set forth evidentiary facts sufficient to satisfy its burden of proof. The terms of the note are not denied by defendant Sharp in her affidavit. She has failed to demonstrate the existence of a triable issue of fact.

Section 3212 requires denial of summary judgment when there is significant doubt about whether a material fact is triable.

Grasser v. Graham · filed 1978-12-19

Summary judgment should be denied where there is any doubt, at least any significant doubt, whether there is a material triable issue of fact.

Summary judgment under CPLR 3212 is properly denied when factual questions remain.

John R. Dudley Construction, Inc. v. Drott Manufacturing Co. · filed 1979-01-19

Inasmuch as the record contains factual questions with respect to the second and third causes of action, the motions of defendants Drott, Case Company and Case Power for summary judgment pursuant to CPLR 3212 were properly denied.

Section 3212(b) bars summary judgment when a material issue of fact remains for trial.

Urso v. Maritato · filed 1979-02-08(b)

It is fundamental that summary judgment should not be granted when there appears to be a material and triable issue of fact (CPLR 3212, subd [b]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Habinc v McTaggart, 54 AD2d 799).

Section 3212(b) permits summary judgment when the papers establish that there is no triable issue of fact and a party is entitled to judgment as a matter of law.

Ryan v. Albany County Democratic Committee · filed 1979-01-25(b)

Initially, it is apparent to the court that there are no triable issues of fact existing. ... There being no triable issues of fact raised by the pleadings and no legal basis for the relief sought in the complaint, the defendants’ motion to dismiss the complaint and motion for summary judgment is granted.

Section 3212 permits summary judgment when the facts are essentially incontroverted and no issue warrants a trial.

Anjo Restaurant Corp. v. Sunrise Hotel Corp. · filed 1979-02-26

Motion by defendant, Sunrise Hotel Corp., pursuant to CPLR 3211 (subd [a], par 7) and CPLR 3212, is granted. ... While many legal and equitable issues have been raised by both parties, the facts are essentially incontroverted and no issues exist which warrant a trial.

Section 3212 permits summary judgment in a negligence action only when no genuine triable issue of fact remains and negligence can be determined as a matter of law.

Ugarriza v. Schmieder · filed 1979-02-13(b), (c)

Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination. Only if it can be concluded as a matter of law that defendant was negligent, may summary judgment be granted in a negligence action. The matter before us is not such a case.

CPLR 3212 does not permit summary judgment when a party’s deposition leaves a material factual issue unresolved.

Pine v. Solow · filed 1979-04-03

On this record, the statement by Haskel alone in this procedural context is clearly insufficient to permit granting the drastic remedy of summary judgment.

Section 3212(b) permits summary judgment dismissing claims against defendants when undisputed evidence shows they were not involved in the alleged wrongdoing.

Andrews v. Mensch · filed 1979-06-28(b)

Defendants’ request to drop Jesse Borck and Jerome R. Davis as parties is granted to the extent that summary judgment is granted in their favor and the complaint is dismissed as against them (CPLR 3212, subd [b]). ... Plaintiffs do not dispute any of this nor do they submit any proof to support the allegation in their complaint that Borck and Davis are partners in the adult home. The court is, therefore, forced to conclude that Borck and Davis were not involved in the withholding of the moneys sued for and the complaint with respect to them fails to state a cause of action.

Under CPLR 3212, conclusory allegations without specific facts cannot defeat a summary judgment motion supported by a prima facie showing.

Bank of New York v. Progressive Phone Systems, Inc. · filed 1979-09-28

General conclusory allegations which contain no specific factual references cannot defeat- a motion for summary judgment where the movant’s papers make out a prima facie basis for the grant of the motion (see Freedman v Chemical Constr. Corp., 43 NY2d 260; see, also, Siegel, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR 3212:16, pp 436-437).

Section 3212 requires a court deciding summary judgment to determine whether a claimed factual issue is genuine or unsubstantiated.

Hirsch v. S. Berger Import & Manufacturing Corp. · filed 1979-03-15

On a motion for summary judgment the court’s inquiry must be directed to a determination of whether the factual issue is "genuine or unsubstantiated.”

Partial summary judgment on liability is improper when the evidence raises a factual dispute about whether the plaintiff contributed to the accident.

Borgesano v. Hertz Corp. · filed 1979-04-30

Although Hertz’ showing may have been thin, we believe it sufficed to withstand summary judgment.

Section 3212(b) requires denial of summary judgment when the opposing papers raise a factual issue that must be resolved at trial.

Coutant v. Town of Poughkeepsie · filed 1979-08-06(b)

In our view, several of the alleged procedural irregularities were conclusively rebutted by the opposing papers submitted by the town. As to the remaining irregularities, at best an issue of fact exists which can only be resolved after a full trial.

CPLR 3212 does not permit summary judgment when the value of appropriated property remains a question of fact for trial.

Town of New Windsor v. State · filed 1979-10-24

Moreover, the question of whether the streets had any value, is a question of fact properly determined on trial.

Section 3212 does not permit summary judgment when factual issues about the amount and cause of claimed costs require trial.

Concrete Construction Corp. v. Commercial Union Insurance · filed 1979-03-29

The amount of such additional costs, labor and services and whether they actually resulted from unreasonable delay by Lasker-Goldman in completing performance of its contractual obligations cannot be determined on this record. Such factual issues must await the trier of the facts.

Section 3212 does not permit summary judgment on an issue that requires evidence at trial.

Outdoor Amusement Business Ass'n v. State Tax Commission · filed 1979-09-20

Whether these amusement booths and the games offered are fully places of amusement, or no more than the rudimentary precursor to the now electrically refined amusement device, i.e., the pinball machine and its cousin, the video game, is an evidentiary issue for the trial court. Motions for summary judgment on this point are denied.

CPLR 3212 permits summary judgment dismissing a complaint when the plaintiff shows no triable issue of fact on an essential element.

Glantz v. Scoppetta · filed 1979-04-03

However, the plaintiff has not shown any triable issues of fact as to malice, and therefore summary judgment dismissing the complaint pursuant to CPLR 3212 was proper.

Section 3212 requires a party opposing a prima facie showing for summary judgment to present evidentiary facts sufficient to raise a triable issue.

Cornell University v. Dickerson · filed 1979-06-29

Once the movant has made out a prima facie case, his opponent must lay bare his own proof and show evidentiary facts sufficient to create a triable factual issue. Issue finding, not issue determination is the key.

Section 3212(b) permits summary judgment when the opposing party offers no proof or facts raising a triable issue.

Franklin v. Pee Dee Jay Amusement Co. · filed 1979-08-07(b)

Moreover, in view of the fact that defendants totally failed to submit any proof or allege any facts in support of their position, Special Term properly granted plaintiff summary judgment since no triable issue of fact was raised (see CPLR 3212, subd [b]).

Section 3212 permits partial summary judgment when the opposing party fails to show a genuine triable issue on the claim.

Allied Clove Lakes Co. v. Demisay · filed 1979-08-31

Defendant has failed to demonstrate the existence of any genuine triable issue sufficient to warrant denial of plaintiff’s motion for summary judgment on the first cause of action. Accordingly, the motion is granted.

Section 3212(b) permits summary judgment on liability when a concession leaves no factual issue to try.

Lesser v. Long Island Jewish Hillside Medical Center · filed 1979-10-29(b)

Given that concession of the wrongful act (see EPTL 5-4.1), which is the precise issue of fact underlying the appellant’s liability to the plaintiff’s deceased, there is no reason to conduct a trial of that issue and summary judgment was properly granted (see CPLR 3212, subd [b]).

The party moving for summary judgment under CPLR 3212 bears the burden of proof.

Onondaga Soil Testing, Inc. v. Barton, Brown, Clyde & Loguidice, P. C. · filed 1979-04-06

The burden of proof on a motion for summary judgment under CPLR 3212 rests upon the moving party.

Under CPLR 3212, a party opposing summary judgment must come forward with evidentiary facts linking the moving party to the alleged injury.

Morehouse v. Aktiengesellschaft · filed 1979-05-31

Appellants, in our view, failed to meet their burden of coming forward with evidentiary facts indicating a legally responsible link between these defendants and the injuries sustained (Blake v Gardino, 35 AD2d 1022, affd 29 NY2d 876).

Section 3212 requires a summary judgment movant to establish entitlement to judgment as a matter of law, even if the opposing papers are insufficient.

Lurie v. Child's Hospital · filed 1979-06-21

The burden is upon the movant to produce such evidence even where the opposing papers may be insufficient to defeat the motion (Walski v Forma, 54 AD2d 776; Stelick v Gangl, 47 AD2d 789).

Section 3212 does not permit a court to render a declaratory judgment sua sponte when no motion for summary judgment has been made.

Fulton Cama, Inc. v. Trustees of Farmingdale · filed 1979-11-26

In the absence of a motion for summary judgment, it was improper for Special Term to render a declaratory judgment in this action sua sponte (see CPLR 3212).

CPLR 3212(b) permits the court to grant summary judgment dismissing a complaint when the record establishes that the defendant is entitled to judgment.

Firemen's Insurance v. Chase Manhattan Bank, N. A. · filed 1979-12-18(b)

Firemen’s motion for summary judgment is denied. Chase is granted summary judgment dismissing the complaint upon its application and CPLR 3212 (subd [b]).

Section 3212 permits a party to move for summary judgment after issue is joined, even if the party previously made a CPLR 3211 motion.

Fierro v. Mauro · filed 1980-03-24

The court is aware that one may only bring one motion pursuant to CPLR 3211 (subd [e]), however, the court treats the present motion as a 3212 motion which defendants are free to bring anytime after joinder of issue.

CPLR 3212 permits summary judgment when the opposing party raises no issue of fact requiring a trial and the legal questions favor the moving party.

Incorporated Village of Old Field v. Introne · filed 1980-05-20

As the plaintiff in opposing this motion has not raised any issues of fact which require a trial, and whereas all questions of law have been resolved in favor of the defendants, the defendants are entitled to summary judgment.

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

Consolidated Edison Co. of New York, Inc. v. State Board of Equalization & Assessment · filed 1979-11-23(b)

In applying the general principles set forth above to the proof presented in opposition to these motions, the court is not persuaded that petitioner does not "show facts sufficient to require a trial of any issue of fact (CPLR 3212, subd [b])”.

Section 3212 requires denial of summary judgment when a sufficient factual question remains about an assignee’s good faith and notice of a defense.

Chase Manhattan Bank, N. A. v. Finger Lakes Motors, Inc. · filed 1979-12-13

Accordingly, the court finds that the defendants have raised a sufficient question of fact as to whether Chase took the assignment in good faith and without notice, an issue which Chase has failed to overcome on this motion. ... For the foregoing reasons, plaintiff’s motion for summary judgment is denied.

Section 3212(b) requires denial of summary judgment if any party shows facts sufficient to require a trial of an issue of fact.

Fantasia v. Carpenters' Finger Lakes District Council Welfare Fund · filed 1979-12-14(b)

The motion should be denied if any party shows facts sufficient to require a trial of any issue of fact (CPLR 3212, subd [b]).

Section 3212 does not permit summary judgment when a properly raised factual issue remains for trial.

Rogers v. New York Telephone Co. · filed 1980-02-19(b)

Summary judgment cannot be granted to the landlord because, as it concedes, a properly raised issue remains as to whether the property damage at the center of its complaints is structural in nature, as the tenant claims, or due to tenant’s misuse, as it claims.

Under CPLR 3212, an affirmative defense that raises triable issues of fact must await trial.

Pudalov v. Brogan · filed 1980-03-10

Triable issues of fact permeate this defense requiring a trial and denial of the motion to dismiss this defense.

Section 3212 does not permit summary judgment on contributory negligence when the established facts leave a triable issue.

O'Connor v. G & R Packing Co. · filed 1980-04-07

Further, insofar as defendant also seeks summary judgment pursuant to CPLR 3212, the facts necessarily established in the prior litigation still leave a triable issue with respect to the question of contributory negligence which precludes dismissal of the complaint.

Section 3212 requires a court deciding summary judgment to determine whether any triable issues of fact remain.

Icelandic Airlines, Inc. v. Canadair, Ltd. · filed 1980-05-01

In order to decide whether defendant should be granted summary judgment as to this cause of action, it must be determined whether or not there are any triable issues of fact. (CPLR 3212.)

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

Morris v. Morris · filed 1980-05-22(b)

However, on the issue of waiver, the record does not permit of a disposition as a matter of law and a trial is accordingly mandated (CPLR 3212, subd [b], "the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact” other than an issue as to the amount or the extent of the damages).

Section 3212 permits denial of summary judgment when the issues require a fuller factual inquiry than the motion papers provide.

Frank H. Hiscock Legal Aid Society v. Hennessy · filed 1979-12-10

Such questions as these ought not be resolved on ... sketchy, hastily drawn motion papers, but instead require a meticulous inquiry into the facts, and an opportunity to be heard for all segments of the community with an interest in the administration of criminal justice. Both motions for summary judgment are therefore denied.

Summary judgment is denied when conflicting factual assertions leave an issue that must be resolved at trial.

Andrew Catapano Co. v. City of New York · filed 1980-03-20

In light of the conflicting factual assertions of the parties, whether or not the conditions found could have been anticipated from the information available is an issue which must be determined upon a trial.

Section 3212 requires denial of summary judgment when disputed facts must be resolved at trial, with the evidence viewed in the nonmoving party’s favor.

Lincoln First Bank, N. A. v. Carlson · filed 1980-03-24

Viewed in a light most favorable to the defendant, Mr. Carlson’s first statement from plaintiff which reflected the billing error was received on July 26, 1978, less than 60 days prior to the September 16 telephone conversation and the September 17 letter. Depending on facts adduced at trial, a trier of fact could well find that the plaintiff waived its requirement of full written notice in only requesting copies of the purchase and credit slips, or that in fact the slips were sufficient written notice. ... Plaintiffs motion for summary judgment is denied.

CPLR 3212 permits a summary judgment motion after issue has been joined.

Copelan v. Archibald · filed 1980-07-11

It is expressly provided that a motion under CPLR 3212 may be made “after issue has been joined”. The court accordingly holds that the motion is timely and is considered as made under CPLR 3212.

On a motion for summary judgment, the court accepts the plaintiff’s factual allegations as true when deciding whether the alleged agreement is enforceable.

Trimmer v. Van Bomel · filed 1980-11-04

For the purposes of this motion for summary judgment, the court must accept as true plaintiff’s allegation that defendant agreed to set up a fund which would permit plaintiff to live for the rerpainder of his life in the sumptuous style to which he had become accustomed.

Section 3212(b) permits summary judgment when the facts are undisputed and applying clear insurance policy terms presents only a question of law.

Dubay v. Trans-America Insurance · filed 1980-06-30(b)

In my opinion the terms set forth in the instant policies are clear and unambiguous. There is no dispute as to the intent of Trans-America and Pal at the time they entered into the two contracts of insurance. The only issue is whether the terms as stated in the policies apply to the facts herein, which are likewise not in dispute. Therefore, the interpretation of such terms with respect to the facts is purely a question of law and accordingly this case is a proper one for the granting of summary judgment (see CPLR 3212, subd [b]).

Section 3212(b) requires the court to examine the parties’ submissions for triable factual issues when deciding summary judgment.

Capital District Telephone Employees Federal Credit Union v. Berthiaume · filed 1980-07-09(b)

CPLR 3211 (subd [c]) and 3212 (subd [b]) require this court to examine the parties’ submissions to determine the existence of triable factual issues on these motions to dismiss and for summary judgment.

Section 3212(b) does not permit a court to resolve disputed factual issues on pleadings and affidavits when deciding summary judgment.

Skelly v. Carma Realty Ltd. · filed 1980-11-13(b)

Notwithstanding the understandable efforts of the court to resolve the differences between these parties without a trial, it was improper for Special Term to decide disputed factual issues upon the pleadings and affidavits, treating plaintiff’s claim as a request for summary judgment pursuant to CPLR 3212 (subd [b]) (Matter of Resco Equip. & Supply Corp. v City Council, City of Watertown, 34 AD2d 1088).

Section 3212 requires the court to examine the proof for genuine factual issues when deciding a motion for summary judgment.

Fletcher v. Greiner · filed 1980-12-17

Defendant further seeks relief pursuant to CPLR 3212 and, on a motion for summary judgment, the court’s inquiry must be directed to a determination of whether the factual issues are genuine (Di Sabato v Soffes, 9 AD2d 297). ... Accordingly, defendant’s motion to dismiss pursuant to CPLR 3212 is hereby granted.

Section 3212 requires denial of summary judgment when there is doubt about a triable issue.

Holender v. Fred Cammann Productions, Inc. · filed 1980-12-18

In conclusion, the following oft-cited propositions are recollected: that on a motion for summary judgment “[i]s-sue-finding, rather than issue-determination, is the key to the procedure” (Esteve v Abad, 271 App Div 725, 727) and that as the granting of a summary judgment motion is the procedural equivalent of a trial, such drastic relief should not be granted where there is any doubt as to the existence of a triable issue (see Crowley’s Milk Co. v Klein, 24 AD2d 920; Moskowitz v Garlock, 23 AD2d 943).

Section 3212(b) permits summary judgment when no factual issue remains about the interpretation of a contract term.

Fitzpatrick v. Mister Donut of America, Inc. · filed 1980-10-14(b)

There is no factual issue revolving about the interpretation of the parties’ use of the phrase "real estate taxes” and hence it was error for Special Term to deny summary judgment. (See CPLR 3212, subd [b].)

Section 3212 permits summary judgment on an intentional infliction of emotional distress claim when the alleged conduct is legally insufficiently outrageous.

Luciano v. Handcock · filed 1980-11-20

Plaintiff’s contention that such a determination is factual thus precluding summary judgment must be rejected.

Section 3212(b) permits summary judgment when the law and facts are clear and no triable issue remains.

Catholic Charities of Roman Catholic Diocese of Syracuse, Inc. v. Barber · filed 1981-05-27(b)

Catholic Charities’ motion for summary judgment is granted. (CPLR 3212, subd [b].) The law and the facts are clear; there is no triable issue of either law or fact now before the court.

Section 3212 permits dismissal of a declaratory judgment action or an Article 78 proceeding when no triable issue of fact remains.

Webster Associates v. Town of Webster · filed 1981-02-18

All the issues raised by petitioners in their article 78 proceeding and declaratory judgment action have hereby been resolved as matters of law. Accordingly, the respondents’ motions are granted: (1) Dismissing the action for declaratory judgment for failure to state a cause of action (CPLR 3211, subd [a], par 7) and for failure to raise a triable issue of fact (CPLR 3212); (2) Dismissing the article 78 proceeding for failure to raise a triable issue of fact (CPLR 3212); (3) Eliminating Webster Associates as a party for lack of standing (CPLR 3211, subd [a], par 3); and (4) Denying respondents’ discovery motions.

Under CPLR 3212, general denials and attorney affidavits without evidentiary facts do not raise triable issues that defeat summary judgment.

Sasso v. Millbrook Enterprises, Inc. · filed 1981-03-10

This motion by plaintiffs for summary judgment pursuant to CPLR 3212 is granted. ... The general denials in defendants’ answer do not raise triable issues of fact. The affirmative defenses are dismissed as having no merit. The affidavits of defendants’ .attorney and the attorney for the Clearview Concrete Products Corp. are devoid of evidentiary facts.

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

State v. Valleta · filed 1981-03-23(b)

Plaintiff has moved this court for an order granting summary judgment in its favor, pursuant to CPLR 3212 (subd [b]). ... In this court’s view, there is no triable issue of fact here involved; the statute has been violated in word and spirit. ... Accordingly, the motion is granted, and the defendant permanently enjoined from further violation of the identified subdivisions of section 601 of the General Business Law.

Section 3212(b) permits a court to search the record and grant summary judgment when no triable issue of fact remains on the claims at issue.

Held v. 7-Eleven Food Store · filed 1981-05-08(b)

A search of the entire record in this case (CPLR 3212, subd [b]) discloses that as a result of severe weather during the winter of 1976-1977, a portion of the concrete walkway directly in front of the 7-Eleven store cracked and raised up so that the front doors would not open. ... Accordingly, there being no triable issues of fact with respect to plaintiffs’ causes of action for strict tort liability and breach of warranty, defendants’ motion for summary judgment with respect to these causes of action is granted.

Section 3212 permits summary judgment when no substantial issue of fact remains to be resolved.

City of New York v. Toby's Electronics, Inc. · filed 1981-07-28

A full examination of the record reveals that the complaint states a cause of action and that there are no substantial issues of fact to be resolved in this case. Thus, the controversy is ripe for summary judgment under CPLR 3212.

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

County of Nassau v. Incorporated Village · filed 1981-03-18(b)

In determining a motion for summary judgment, CPLR 3212 (subd [b]) provides, in part, that “the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact”.

Section 3212 permits summary judgment when collateral estoppel prevents a plaintiff from proving an essential element of a claim.

De Simone v. South African Marine Corp. · filed 1981-06-08

In the case at bar, defendant moved, pursuant to CPLR 3212, for an order granting summary judgment. ... As so precluded, plaintiff would have been rendered incapable of proving, prima facie, one of the necessary elements of his personal injury cause of action ... thus dictating summary judgment in defendant’s favor.

Section 3212 requires denial of summary judgment when factual disputes must be resolved at trial.

Joseph E. Seagram & Sons, Inc. v. Bankers Trust Co. of Albany, N. A. · filed 1981-08-24

These are most serious charges and summary judgment must be withheld to resolve these factual discrepancies after a full evidentiary trial.

Section 3212 does not permit summary judgment when factual questions require resolution.

Board of Education v. Carey · filed 1981-09-08

These are questions of fact which cannot be determined on a motion for summary judgment.

CPLR 3212(b) permits an appellate court to search the record and grant summary judgment to a nonmoving party.

Board of Education v. Statewide Vending Corp. · filed 1981-11-09(b)

Under CPLR 3212 (subd [b]) this court has the authority to search the record and grant summary judgment to the nonmovant on appeal.

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law; unresolved factual issues preclude summary judgment.

Schenectady Air Systems, Inc. v. Campito Plumbing & Heating, Inc. · filed 1981-11-19(b)

Essentially, the burden is on the plaintiff to establish his cause of action “sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212, subd [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068; Walski v Forma, 54 AD2d 776). Examination of the record and briefs readily establishes the existence of unresolved issues of fact.

A court may deny a renewed summary judgment motion when it presents no new facts on an issue decided in an earlier motion.

Carner v. Carner · filed 1981-12-07

The husband then moved again for summary judgment on the same ground. He also moved, inter alia, to dismiss the wife’s counterclaim for equitable distribution. The motion, which resulted in the order now being appealed, was properly denied with respect to the husband’s action for a divorce as no new facts were presented with regard to the question of whether he had disregarded the visitation and custodial provisions prior to the date on which the matrimonial action was commenced.

CPLR 3212(b) calls for summary judgment when the evidence conclusively proves the claim and leaves no triable factual issue.

County of Dutchess v. Dutchess Sanitation Services, Inc. · filed 1982-02-22(b)

Accordingly, each of the elements of the county’s cause of action having been conclusively proven by documentary evidence or defendants’ admissions, summary judgment in favor of the county is mandated (see CPLR 3212, subd [b]).

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

Eastern Rock Products, Inc. v. State · filed 1981-12-28

In sum, no triable issue of fact is presented. The claimant has received and accepted final payment and has not taken the action necessary to avoid the release of its claim. Therefore, the claim is barred. ... Accordingly, it is ordered that the State’s motion for summary judgment is granted, and the clerk of this court is directed to enter a judgment in favor of the defendant dismissing the claim herein.

Section 3212 permits summary judgment when the evidence establishes a claim and no genuine triable issues remain.

Sasso v. Gallucci · filed 1982-02-05

Motion by plaintiffs for summary judgment pursuant to CPLR 3212 against defendants (except Richard L. Russell and Edwin B. Dooly) in the sum of $18,564.75, plus interest from July 5, 1974, is granted. ... There are no genuine triable issues. Accordingly, summary judgment is granted against all defendants except Russell and Dooly.

Section 3212 requires denial of summary judgment when a substantial factual issue requires a trial, even if the plaintiff may ultimately fail to establish liability.

Pistolese v. Eastern Cooperative Insurance · filed 1982-03-25

Given this situation, triable factual issues are raised as to the circumstances surrounding this procurement of the policy from Eastern and as to whether or not plaintiffs have any rights under the policy. Accordingly, there must be a trial of those issues.

Section 3212 precludes summary judgment when a factual dispute is material to the parties’ rights.

Morgan & Bros. v. McGuire · filed 1982-05-04

The absence of this information which is determinative of proximate cause precludes a summary determination between Morgan and the police department.

Section 3212 requires a summary judgment movant to submit admissible evidence sufficient to warrant judgment as a matter of law.

Allstate Insurance v. Moon · filed 1982-07-09

It is axiomatic that to obtain summary judgment pursuant to CPLR 3212, a movant must tender evidentiary proof in admissible form sufficient as a matter- of law to warrant a court to direct judgment in his favor (Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

A party opposing summary judgment must present evidentiary facts supporting the claim; repeating allegations in the pleadings does not meet that burden.

Martin v. County of Madison · filed 1982-07-22

The burden of opposition to a dismissal motion is not met by repetition or incorporation by reference of allegations contained in pleadings ... Summary judgment dismissing the complaint was therefore properly granted.

An unexplained delay amounting to laches can make it an abuse of discretion to grant a motion under CPLR 3212.

Edenwald Contracting Co. v. City of New York · filed 1982-08-26

With no excuse whatsoever offered for the city’s delay, it was an abuse of discretion to grant the motion under CPLR 3212 since the city’s laches was akin to default on the issue.

Section 3212 does not permit summary judgment when genuine issues of fact remain.

Koblenz Jewelers, Inc. v. Insurance Co. of North America · filed 1982-05-06

Summary judgment was properly denied. Triable issues of fact exist as to whether plaintiff’s affirmations in the proposal submitted to obtain the insurance were misrepresentations and as to whether plaintiff complied with the policy condition requiring it to' keep detailed itemized inventory records.

Summary judgment is unavailable when a material factual dispute requires trial.

Boyle v. American Airlines, Inc. · filed 1982-07-08

Although the ticket admittedly set forth the liability limitation, whether plaintiff sought to purchase additional coverage and was refused constitutes a triable issue of fact precluding summary judgment.

Under CPLR 3212, summary judgment is appropriate when no factual issue requires a trial.

Associates v. Bilsco Auto Service, Inc. · filed 1982-07-09

Special Term improperly denied Fiat’s motion for summary judgment pursuant to CPLR 3212. There is no factual issue regarding the validity of Fiat’s disclaimer which requires a trial.

Section 3212(b) permits summary judgment when no fact material to the claim is in dispute.

South Ferry Building Co. v. J. Henry Schroder Bank & Trust Co. · filed 1982-07-29(b)

Summary judgment is warranted where there is no dispute as to any fact material to the movant’s claim (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). That is clearly the case here.

Section 3212(a) permits a motion for summary judgment only after issue has been joined.

Grossman v. Laurence Handprints-N.J., Inc. · filed 1982-11-29(a)

In the case at bar, issue had not been joined and, therefore, the court was powerless to grant summary judgment pursuant to CPLR 3212 (see 6 Carmody-Wait 2d, NY Prac, p 458; Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512; Milk v Gottschalk, 29 AD2d 698).

Section 3212(b) requires a summary judgment movant to present evidentiary facts clearly showing that no triable issue of fact exists.

Kaplan v. Nevele Country Club · filed 1983-01-31(b)

Special Term properly determined that the third-party defendant has not presented evidentiary facts clearly showing the nonexistence of any triable issue of fact (see ... CPLR 3212, subd [b]).

Section 3212(b) permits summary judgment when the papers establish a claim or defense sufficiently for judgment as a matter of law.

Katz v. Press Management Corp. · filed 1983-02-03(b)

Turning now to plaintiff’s cross motion for summary judgment, at the outset it is noted that the “motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212, subd [b]).

A pre-answer motion addressed solely to the face of the complaint should not be treated as a CPLR 3212 summary judgment motion.

I.J.E. Construction Corp. v. Dollar Federal Savings & Loan Ass'n · filed 1983-02-17

We agree that Special Term improperly treated defendant’s motion as one for summary judgment under CPLR 3212 instead of as one for dismissal under CPLR 3211 (subd [a]). The motion, made prior to joinder of issue, was addressed solely to the face of the pleading.

On a motion for summary judgment, the court looks to the uncontroverted proof.

Jacobs v. Citibank, N.A. · filed 1983-03-08

Here, however, we are confronted with a motion for summary judgment. On such an application we look to the uncontroverted proof.

Section 3212 does not permit summary judgment dismissing an affirmative defense when a factual question requires trial.

Chodos v. Flanzer · filed 1982-11-29

However, insofar as said first affirmative defense also alleges contributory negligence, we believe a question of fact is arguably presented, requiring a trial.

Section 3212(b) limits a court deciding summary judgment to determining whether the parties’ evidence reveals a genuine issue of material fact; the court does not resolve that issue.

Behar v. Ordover · filed 1983-02-14(b)

As a rule, in determining a motion for summary judgment (CPLR 3212, subd [b]), the court’s function is limited to the ascertainment of the existence of any genuine issues of material fact in the proofs laid bare by the parties’ submissions of affidavits based on personal knowledge and documentary evidence, rather than in their conclusory or speculative averments. The court makes no discretionary examination of such fact issues, nor does it resolve them.

Section 3212(b) permits summary judgment when the proof warrants judgment as a matter of law and no factual issue precludes it.

Drysdale v. Meritplan Insurance · filed 1983-05-25(b)

Upon reviewing the documentary evidence relied on by Lumbermen’s, consisting of the policy change indorsement, notice of cancellation, certificate of mailing, and notice to the New York State Insurance Department, we conclude that it has demonstrated compliance with section 313 of the Vehicle and Traffic Law sufficient to warrant the court as a matter of law in directing judgment in its favor (CPLR 3212, subd [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

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

E. R. Greene & Associates, Inc. v. Board of Education of Roslyn Union Free School District · filed 1983-08-08

Plaintiff’s submission in opposition to defendants’ motion failed to make out a cause of action or raise any triable issue of fact with respect to the propriety of defendants’ actions in rejecting all bids originally submitted and readvertising for new bids for the furnishing and installing of a computer system.

CPLR 3212 permits summary judgment when no substantial question of fact remains.

Hall v. Fireman's Fund Insurance · filed 1983-04-22

There is no substantial question of fact above. Plaintiff’s complaint is dismissed, and summary judgment is granted defendant.

Subdivision (b) permits summary judgment when the facts shown are insufficient to require a trial of a claim.

Sommella v. Roach · filed 1983-04-26(b)

We agree with the Appellate Division that there have not been shown facts sufficient to require a trial of the claim that John Holze disconnected the rope marker in the swimming pool (CPLR 3212, subd [b]).

Section 3212(b) requires denial of summary judgment when material facts require a trial; the court cannot resolve those facts on affidavits.

In re the Estate of Dwyer · filed 1983-04-28(b)

The obligation of the court not to decide material issues of fact on affidavits does not depend on the request of parties for an evidentiary hearing. If facts sufficient to require a trial on issues of fact appear, “the motion [for summary judgment] shall be denied”. (CPLR 3212, subd [b].) Especially in so sensitive a matter as this, involving misconduct by an attorney, we should be particularly careful not to deprive the parties of an opportunity to have a full exploration at an evidentiary hearing of disputed material issues of fact.

CPLR 3212(b) requires denial of summary judgment when unresolved factual issues prevent the movant from conclusively establishing that the opposing party has no claim.

Philips Business System Inc. v. Wilmac Co. · filed 1983-05-25(b)

Since plaintiff has not established conclusively by documentary evidence or otherwise that defendant has no claims to the items listed in exhibit “L”, summary judgment should have been denied (CPLR 3212, subd [b]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Section 3212 does not allow partial summary judgment on a factual question that must be resolved at trial.

People ex rel. Arcara v. Cloud Books, Inc. · filed 1983-05-31(e)

Whether or not the activities alleged are sufficient to bring the Store within the purview of title II is a'factual question which cannot be determined on this motion for partial summary judgment.

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

City of New York v. United States Fidelity & Guaranty Co. · filed 1983-06-13

There being no triable issues of fact remaining, plaintiff’s motion for summary judgment is granted, defendant’s cross motion for summary judgment is denied.

CPLR 3212 permits summary judgment when no issues of fact remain unresolved.

Banco Mercantil de Sao Paulo S. A. v. Nava · filed 1983-08-09

The court has found no issues of fact which are left unresolved. Therefore, summary judgment is appropriate.

Section 3212 does not permit summary judgment when the record presents a question of fact about whether defendants acted in concert.

Herman v. Wesgate · filed 1983-05-25

The complaint states a cause of action against each of the defendants and the record presents questions of fact as to whether defendants John Hauck and James Hauck acted in concert with the other defendants. Thus summary judgment should not have been granted (Ugarriza v Schmieder, 46 NY2d 471).

Section 3212(b) does not permit summary judgment dismissing a claim in its entirety when the record makes a prima facie showing that the claim may succeed.

Cayuga Harvester, Inc. v. Allis-Chalmers Corp. · filed 1983-07-11(b)

The precise question here is whether plaintiff has made a prima facie showing that the limited remedy failed of its essential purpose. On our review of the record we hold that plaintiff has made such a showing and that Special Term was in error in granting summary judgment dismissing the first two causes of action against Allis in their entirety (CPLR 3212, subd [b]).

A summary judgment motion under CPLR 3212(a) may be made after issue has been joined; without a reply to counterclaims, the motion is technically premature.

City of Rochester v. Chiarella · filed 1983-10-27(a)

Pursuant to CPLR 3212 (subd [a]) a motion for summary judgment can be made “after issue has been joined.” Technically, therefore, in the absence of a reply to the counterclaims, neither section seems applicable, but as noted above, this does not form the sole basis for the holding herein.

Section 3212(a) does not authorize a court to grant summary judgment on its own initiative when neither party has moved for it.

Ressis v. Mactye · filed 1983-12-01(a)

Here, neither party moved for summary relief. Accordingly, Special Term was without authority to grant sua sponte relief under CPLR 3212.

CPLR 3212 does not permit a court to grant summary relief on its own initiative when no party has moved for it.

De Pan v. First National Bank · filed 1983-12-15

However, in the absence of a CPLR 3212 motion for summary relief by defendant bank or third-party defendant, neither Special Term nor this court can, sua sponte, grant such relief (see Matter of Fulton Cama, Inc. v Trustees of Vil. of Farmingdale, 72 AD2d 813, 814).

CPLR 3212 does not permit a court to grant summary judgment when neither party has moved for that relief.

Prosser v. Gouveia · filed 1983-12-16

Special Term erred in granting plaintiff summary judgment in the absence of a motion by either party seeking that relief (CPLR 3212).

A court may grant summary judgment even if an earlier motion sought the same relief.

Arvinger v. Genway Corp. · filed 1984-01-16

We also note that this court may grant the relief requested even if a prior motion seeking the same relief as that sought by the instant motion had been initiated on an earlier occasion (see Scott v Transkrit Corp., 91 AD2d 682).

Section 3212(b) requires summary judgment when the proof establishes entitlement to judgment as a matter of law and no factual issue requires trial.

Pastoriza v. State · filed 1984-03-05(b)

The statute in question, CPLR 3212 (subd [b]), requires that: “[t]he motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” ... It should also be noted that the defendant has failed to allege any substantial factual issue that would require the court to deny the instant motion.

CPLR 3212 permits summary judgment when no material, triable issue of fact exists.

County of Broome v. Conte · filed 1983-08-31

Summary judgment is a drastic remedy and will not be granted if there is any doubt of the existence of a material and triable issue of fact.

Section 3212 requires denial of summary judgment when admissible evidence raises a factual issue requiring trial.

Waldron v. Wild · filed 1983-11-04

In our view plaintiff has demonstrated by admissible evidence the existence of a factual issue requiring a plenary trial on the issue of a “significant disfigurement”. Therefore, the motion for summary judgment should have been denied.

CPLR 3212 calls for summary judgment when the opposing party shows no facts sufficient to require a trial.

Park South Associates v. Daniels · filed 1983-11-25

There being no factual demonstration sufficient to require a trial, summary judgment is mandated.

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

Carter v. County of Erie · filed 1983-12-16

Thus, there is no triable issue warranting ... denial of the motion (CPLR 3212; see Mildner v Wagner, 89 AD2d 638; Dabney v Ayre, 87 AD2d 957).

Section 3212 requires denial of summary judgment when questions of fact must be resolved by the trier of fact.

Phelan v. Yellin · filed 1984-01-31

In addition, questions of fact exist concerning the reasonableness of defendants’ conduct under the circumstances, which are best resolved by the trier of fact.

Section 3212 precludes summary judgment while a material factual question remains about whether the parties extended a deadline.

Eldre Components, Inc. v. Comten, Inc. · filed 1983-11-04(b), (f)

Until the question of a time extension is resolved, a material issue of fact persists which precludes the granting of summary judgment (CPLR 3212, subds [b], [f]; see, also, Fantasia v Carpenters’ Finger Lakes Dist. Council WelfareFund, 73 ÁD2d 799).

Section 3212(b) requires denial of summary judgment when factual questions remain for resolution.

Martek Investors, Inc. v. Morris Smith Carting Co. · filed 1984-01-27(b)

There are factual questions pertaining to whether the business of the proposed assignee was such that under paragraph 10 of the lease the lessor could properly withhold its consent to the assignment. Summary judgment was, therefore, properly denied to each party (CPLR 3212, subd [b]).

Section 3212 does not permit summary judgment when the submissions leave a factual issue about estoppel unresolved.

Hannigan Electrical Contractors, Inc. v. Awerbuch · filed 1984-02-24

However, the court will not grant summary judgment in favor of the defendant Kurtter upon the grounds that the submissions herein at least continue to raise issues of fact as to whether or not the said defendant is estopped from denying the existence of a valid lien under the doctrine of estoppel in pais ... In accordance with the court’s findings above, the plaintiff’s motion for summary judgment is denied and the defendant Kurtter’s cross motion for summary judgment is denied.

Section 3212(a) requires issue to be joined before a party moves for summary judgment.

General Motors Acceptance Corp. v. Kalkstein · filed 1984-04-17(a)

It should be further emphasized that GM’s motion was made before issue was joined on the amended third-party complaint. Therefore, the branch of GM’s motion which sought summary judgment must be denied as premature.

Section 3212(b) authorizes a court to grant summary judgment to a nonmoving party.

Stahl Associates Co. v. Darland · filed 1984-04-17(b)

However, tenant is granted reverse summary judgment dismissing the petition pursuant to authority contained in CPLR 3212 (subd [b]).

A cross claim should receive liberal construction when a court considers summary judgment early in the action.

Haseley Trucking Co. v. Great Lakes Pipe Co. · filed 1984-05-25

Therefore, it was premature for Special Term to dismiss the cross claim. A cross claim should receive liberal construction at so early a point in the action.

Section 3212 does not permit summary judgment when a fact issue remains about whom a contract’s cancellation clause benefits.

Chappaqua Commons, Inc. v. Mullane · filed 1984-04-30

In an action for specific performance of a contract to sell real property, the plaintiff purchaser appeals from an order of the Supreme Court, Westchester County (Delaney, J.), dated August 15, 1983, which denied its motion for summary judgment pursuant to CPLR 3212. ... Under the facts of this case, especially the limited down payment of $1,000 on a $135,000 transaction, whether the cancellation clause was for the benefit of the seller as well as the buyer was a fact issue.

Section 3212(b) precludes summary judgment when the allegations raise triable issues of fact.

AFSCME, New York Council 66 v. City of Lackawanna · filed 1984-05-25(b)

These allegations raise triable issues of fact which preclude the granting of summary judgment (see CPLR 3212, subd [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068; cf. Zuckerman v City of New York, 49 NY2d 557).

Section 3212 permits summary judgment when the proof eliminates all triable issues of fact.

Mader v. Mader · filed 1984-05-29

The proof before Special Term on the motion for summary judgment was sufficient to eliminate any triable issues of fact (CPLR 3212).

Section 3212(b) permits summary judgment when no material issue of fact requires a trial.

Hardy v. Gullo · filed 1984-05-22(b)

In opposing the Diocese’s statutory defense, plaintiffs rely on legal arguments and do not demonstrate the existence of a material issue of fact. Absent an issue of fact requiring trial, summary judgment is proper.

Under CPLR 3212, summary judgment is warranted when the opposing party fails to present facts raising a bona fide triable issue.

Schlesinger v. World-Wide Volkswagen Corp. · filed 1984-06-04

Upon the record before us, plaintiff has failed to come forward with facts which raise bona fide triable issues (see Barr v County of Albany, 50 NY2d 247, 257-258; Zuckerman v City of New York, 49 NY2d 557, 562; Fishman v County of Nassau, 84 AD2d 806).

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

Zullo v. Zullo · filed 1984-07-12(b)

Since she has otherwise failed to present evidence which raises a triable issue of fact (CPLR 3212, subd [b]), summary judgment in favor of plaintiff was properly granted.

Summary judgment is unavailable when factual issues remain.

National Medical Management, Inc. v. Midland Emergency Associates · filed 1984-06-25

We agree with Special Term that the existence of factual issues in this case precludes the granting of summary judgment.

Summary judgment is precluded when sufficient factual disputes remain.

Abrams v. Richmond County S.P.C.C. · filed 1984-07-10

Likewise, sufficient factual disputes exist such as to preclude the granting of summary judgment.

A request for summary judgment under CPLR 3212 is premature before an answer to the complaint has been served.

Costa v. Breslow · filed 1984-08-31

Although it appears that no answer to the complaint has yet been served, rendering the request for summary judgment pursuant to CPLR 3212 premature (e.g., Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512), the motion to dismiss pursuant to CPLR 3211 (subd [a], pars 1, 7) may be considered.

A summary judgment motion under section 3212(a) is usually made only after issue has been joined.

Nassau Boces Central Council of Teachers v. Board of Cooperative Educational Services · filed 1984-09-20(a)

Although, as respondents argue, an article 78 proceeding “on analysis closely correspond^] to an action if a motion for summary judgment could be made simultaneously with the commencement of the action” (8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.03), it is also true that a motion for summary judgment is usually made only “after issue has been joined” (CPLR 3212, subd [a]) and that a motion to dismiss may be treated as a motion for summary judgment only when the parties have had the opportunity to “submit any evidence that could properly be considered on a motion for summary judgment” (CPLR 3211, subd [c]).

To defeat summary judgment under CPLR 3212, a plaintiff must show facts sufficient to require a trial; bare conclusory allegations are insufficient.

Vasquez v. New York City Transit Authority · filed 1984-10-01

In order to defeat a motion for summary judgment, a plaintiff must show facts sufficient to require a trial (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Spearmon v Times Sq. Stores Corp., 96 AD2d 552).

Section 3212(b) authorizes judgment for either party when no material facts are in dispute and the record warrants judgment as a matter of law.

Hughes v. Marine Midland Bank, N. A. · filed 1985-01-15(b)

By means of this language, any motion for summary judgment incorporates the common-law demurrer rule, that the application “searches the record” and authorizes judgment for either party where no material facts are in dispute.

Section 3212(b) requires a summary judgment movant to present evidentiary facts establishing entitlement to judgment as a matter of law before the opposing party must show a factual dispute.

Burton v. Ertel · filed 1985-01-17(b)

It is well established that one moving for summary judgment has the burden to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law, whereupon the burden is shifted to the opposing party to come forward with proof in evidentiary form to demonstrate the existence of issues of fact (Piccolo v De Carlo, 90 AD2d 609, 610; see, also, CPLR 3212, subd [b]).

Section 3212(b) permits summary judgment for a defendant when the record raises no triable issue.

Barry Road Long Acre Neighborhood Ass'n v. Johnson · filed 1985-01-29(b)

On this record we agree that summary judgment was properly granted to defendant (CPLR 3212, subd [b]) declaring that the defendant town has complied with the New York State Environmental Quality Review Act and the town’s Environmental Quality Review Ordinance and that the property was legally and validly rezoned by the town. ... The moving papers raise no triable questions on these or any other issues.

Section 3212(a) makes summary judgment inappropriate before issue has been joined.

Domermuth Petroleum Equipment & Maintenance Corp. v. Gorman Bros. · filed 1985-02-13(a)

Since issue has not been joined, summary judgment is clearly inappropriate and plaintiff’s motion is therefore denied (CPLR 3212 [a]).

Under CPLR 3212(b), a court must determine whether the moving defendant established its defense before assessing whether the plaintiff raised a material factual issue.

Olan v. Farrell Lines Inc. · filed 1985-04-25(b)

We add only that, before considering whether plaintiff put forth sufficient proof to defeat defendant’s motion for summary judgment, the issue of whether defendant established its defense must first be addressed (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). In this instance, defendant put forth sufficient evidentiary proof in admissible form, and plaintiff raised no issue of material fact to support its claim of negligence and unseaworthiness.

Section 3212(a) requires issue to be joined before a party moves for summary judgment on a counterclaim.

City of Rochester v. Chiarella · filed 1985-05-02(a)

Because the city had not replied to the Sercus’ counterclaim, their 3212 motion for summary judgment preceded joinder of issue and was untimely (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3212:12, p 432).

Section 3212(a) generally permits a summary judgment motion only after issue has been joined.

Schmidt v. Solow Management Corp. · filed 1985-06-04(a)

CPLR 3212 (a) provides that a party may move for summary judgment after issue has been joined. A motion is made when a notice of the motion or an order to show cause is served. (CPLR 2211.) In that connection, the instant motion was made prior to the time that issue was joined, and, therefore, plaintiff’s motion for summary judgment should not have been granted.

Section 3212 permits denial of summary judgment when the opposing party has reasonably sought discovery of facts held by the moving party but has not yet obtained them.

Miceli v. Olcott · filed 1986-04-07(b)

Inasmuch as discovery was delayed in order to accommodate Dorsey, a foreign corporation, summary judgment should not have been granted under the circumstances of this case.

Section 3212(a) permits a party to move for summary judgment only after issue has been joined.

Delta Electric, Inc. v. Ingram & Greene, Inc. · filed 1986-09-22(a)

Under CPLR 3212 (a), a party may move for summary judgment only "after issue has been joined.”

Section 3212(b) permits summary judgment only when there is no defense to the cause of action or the cause of action has no merit; late service of a certificate of merit alone does not justify it.

Steinberg v. Brookdale Hospital Medical Center · filed 1986-12-08(b)

In fact, the only ground upon which summary judgment may be granted, as set forth in CPLR 3212 (b), is "that there is no defense to the cause of action or that the cause of action * * * has no merit.” ... Accordingly, I conclude that the motions for summary judgment should not be granted.

CPLR 3212(a) makes a motion for summary judgment premature until issue has been joined.

Maurer v. Johns-Manville, Inc. · filed 1987-01-12(a)

In any event, Standard advances arguments more appropriately considered on a motion for summary judgment. If this is indeed what Standard was seeking, its cross motion was premature as issue had not yet been joined (CPLR 3212 [a]).

Section 3212 permits denial of summary judgment when discovery is incomplete and the factual basis for the opposing party’s allegations remains unexplored.

Johnson v. Verrilli · filed 1987-02-02

In this court’s view, since discovery has not been completed and the factual bases for plaintiffs’ allegations have not been explored, dismissal at this time would be premature and a travesty of the judicial system’s primary function of redressing a wrong in a civilized forum. Accordingly, defendants’ motion for summary judgment is denied.

CPLR 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law.

Goldman v. Ambro · filed 1987-02-04(b)

The defendant, having failed to establish his entitlement to summary judgment as a matter of law (CPLR 3212 [b]) and there being factual issues remaining with respect to the intent of the parties to the contract, the nature and breadth of the agreement, the reasonable valuation of the services rendered and the circumstances surrounding the plaintiff’s failure to submit a bill to the Department of Social Services, the matter which is presently on the Arbitration Calendar shall be scheduled for hearing and determination.