N.Y. C.P.L.R. § 3212

CPLR 3212(b) permits denial of summary judgment when a material factual issue remains.

Matter of Levinson · filed 2018-11-08(b)

However, the court found that petitioner had shown no prejudice to her rights and no negative impact on the trust as a result of respondent's failure, ostensibly finding an issue of material fact therein ( see CPLR 3212 [b]), and it therefore properly exercised its discretion and declined to grant summary judgment absent a showing of serious misconduct that threatened the estate or trust ( cf. Matter of Vermilye , 101 AD2d 865, 865 [1984]; Matter of Farber , 98 AD2d 720, 720 [1983]).

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

Island Life Chiropractic, P.C. v. Erie Ins. Co. of N.Y. · filed 2018-11-16

Contrary to defendant's sole contention on appeal, the affidavit of plaintiff's owner was sufficient to demonstrate the existence of a triable issue of fact with respect to whether the claim had been timely submitted to defendant.

Summary judgment must be denied when a material factual issue remains for trial.

S.A. De Obras y Servicios, COPASA v. Bank of Nova Scotia · filed 2019-03-12

On a motion for summary judgment the court's role is "to determine whether there is a material factual issue to be tried, not to resolve it" ( Sommer v Federal Signal Corp. , 79 NY2d 540, 554 [1992]).

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

Salas v. Adirondack Tr. Lines, Inc. · filed 2019-05-01(b)

In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact ( see CPLR 3212[b]).

Section 3212(b) requires denial of summary judgment when a party shows facts sufficient to require a trial on a material issue, including comparative negligence.

Martinez v. 281 Broadway Holdings, LLC · filed 2020-05-13(b)

Here, SJE raised a triable issue of fact as to whether the condition was readily observable, which bears upon the issue of the plaintiff's comparative negligence ( see e.g. Van Salisbury v Elliott-Lewis , 55 AD3d 725, 727; Sportiello v City of New York , 6 AD3d 421, 422). As a result, the court should not have, in effect, awarded summary judgment dismissing SJE's affirmative defense of comparative negligence.

Under CPLR 3212(b), a motion for summary judgment must be denied when the opposing party raises a triable issue of fact, even if the movant meets its initial burden.

Green v. Iacovangelo · filed 2020-06-12(b)

Thus, the hospital defendants met their initial burden ( see generally CPLR 3212 [b]; Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986]). We conclude, however, that plaintiffs' submissions in opposition, viewed in the light most favorable to plaintiffs ( see Nichols v Xerox Corp. , 72 AD3d 1501, 1502 [4th Dept 2010]), raise a triable issue of fact with respect to whether the hospital defendants' efforts to locate decedent's next of kin were reasonable and sufficient ( see generally Zuckerman v City of New York , 49 NY2d 557, 562 [1980]).

CPLR 3212 permits summary judgment when no facts are disputed and further discovery is unnecessary.

Gottesman Co. v. A.E.W, Inc. · filed 2021-01-14

Moreover, there are no disputed issues of fact and no need for further discovery pursuant to CPLR 3212.

Section 3212 requires a summary judgment movant to establish entitlement to judgment with admissible proof showing no material issue of fact.

Matter of Martirano · filed 2019-05-09

On a motion for summary judgment, the movant has the initial burden to establish its prima facie entitlement to summary judgment as a matter of law by submitting evidentiary proof in admissible form, demonstrating the absence of any material issues of fact ( see CPLR 3212; Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986]; Matter of Clark , 119 AD2d 947, 948 [1986]). ... Upon our review of the evidence proffered in support of the motions for summary judgment, we find that neither the mother nor the brother met their prima facie burden of establishing, as a matter of law, their entitlement to summary judgment on the issue of whether the mother had voluntarily abandoned decedent or failed to provide for him.

A summary judgment movant must make a prima facie showing; if it fails, the court need not assess whether the opposition raises a triable issue of fact.

Green Tree Servicing, LLC v. Ferando · filed 2019-05-15

Accordingly, the plaintiff failed to demonstrate, prima facie, that the satisfaction of mortgage was erroneously or fraudulently issued ( see U.S. Bank, N.A. v Noble , 144 AD3d 788, 790; see Onewest Bank, FSB v Michel , 143 AD3d at 871). Since the plaintiff failed to meet its prima facie burden, we need not determine whether the appellant's opposition papers were sufficient to raise a triable issue of fact ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851; Bank of N.Y. Mellon v Selig , 165 AD3d 872).

Section 3212 requires a summary judgment movant to establish entitlement to judgment with admissible proof; inadmissible hearsay does not meet that burden.

U.S. Bank N.A. v. Gonzalez · filed 2019-05-22

On a motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law ( see HSBC Mtge. Servs., Inc. v Royal , 142 AD3d 952, 953-954). Inasmuch as the plaintiff's motion was based on evidence that was not in admissible form, as it relied upon inadmissible hearsay, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law ( see id. at 953-954).

Section 3212 requires a party moving for summary judgment to make a prima facie showing with admissible evidence; without it, the motion must be denied regardless of the opposing papers.

Frank v. Metalico Rochester, Inc. · filed 2019-07-31

We conclude that plaintiff failed to proffer sufficient evidence in admissible form to meet that burden ( cf. Natural Organics, Inc. v Kirkendall , 52 AD3d 488, 489 [2d Dept 2008], lv denied 11 NY3d 707 [2008]), and his " [f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers' " ( JMD Holding Corp. v Congress Fin. Corp. , 4 NY3d 373, 384 [2005], quoting Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986]).

A party seeking summary judgment must first present enough evidence to establish entitlement to judgment as a matter of law and the absence of any material factual dispute.

Otitigbe v. Rensselaer Polytechnic Inst. · filed 2019-09-12

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," and the "[f]ailure to make such [a] showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986]).

A defendant moving for summary judgment bears the initial burden of affirmatively showing entitlement to judgment as a matter of law.

Katz v. Beil · filed 2016-09-14(b)

In the context of this pretrial motion for summary judgment, the individual defendants, as the moving parties, had the initial burden of proof (see CPLR 3212 [b]; Hecker v Liebgold, 130 AD3d 572, 573 [2015]).

A party seeking summary judgment must make a prima facie showing of entitlement to judgment.

Bay LS Med. Supplies, Inc. v. Allstate Ins. Co. · filed 2016-08-18

Thus, plaintiff did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff's motion seeking summary judgment on its first cause of action should have been denied.

A sworn independent medical examination report that gives a factual basis and medical rationale for finding further treatment unnecessary can establish a prima facie entitlement to summary judgment.

AL Acupuncture, P.C. v. Praetorian Ins. Co. · filed 2016-08-18

In support of the branch of its cross motion seeking summary judgment dismissing the remainder of the complaint, which sought to recover upon claims which had been denied on the ground of lack of medical necessity, defendant submitted a sworn independent medical examination (IME) report, which set forth a factual basis and medical rationale for the doctor's conclusion that there was a lack of medical necessity for further treatment. Thus, defendant made a prima facie showing of its entitlement to summary judgment dismissing these claims.

Section 3212 permits summary judgment when the moving party makes a prima facie showing of entitlement to judgment and the opposing party fails to rebut it.

Theracare & Wellness, P.T., P.C. v. Great N. Ins. Co. · filed 2016-09-27

The IME report set forth a factual basis and medical rationale for the doctor's conclusion that there was a lack of medical necessity for further treatment. Defendant's prima facie showing was not rebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint is granted ( see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. , 24 Misc 3d 136 [A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. , 18 Misc 3d 128 [A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. , 16 Misc 3d 131 [A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

A defendant makes a prima facie showing of entitlement to summary judgment by submitting a sworn IME opinion with a factual basis and medical rationale for finding further treatment unnecessary.

Raymond Semente, D.C., P.C. v. Mercury Cas. Co. · filed 2016-06-03

In support of its motion, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor's conclusion that there was a lack of medical necessity for further treatment. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint.

A motion for partial summary judgment may be denied when the movant fails to establish entitlement to judgment as a matter of law.

Pokoik v. Department of Health Services · filed 1994-12-19(b)

While we hold that this was not a proper basis for the denial of the motion by the Supreme Court, we nevertheless conclude that the motion for partial summary ... judgment was properly denied because the petitioner failed to establish his entitlement to judgment as a matter of law (see generally, CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment with evidence; conclusory assertions do not suffice.

Masucci v. Feder · filed 1993-08-05(b)

This affidavit, in addition to his deposition testimony, consisted of bare conclusory assertions that he did not deviate from good and accepted medical practices and failed to establish that the plaintiff’s cause of action had no merit so as to entitle him to summary judgment (CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., supra, at 853; see also, Canosa v Abadir, 165 AD2d 823).

A party moving for summary judgment under CPLR 3212 must establish a prima facie case; an affidavit without a shown basis of expertise may be insufficient to do so.

Bivona v. City of New York · filed 1993-11-09

Among other things, however, defendant has not established a prima facie case that the weight of the bridge, and its long presence on the site, could not have caused the sidewalk to crack or shift in some manner. The affidavit of defendant-appellant’s vice president, who was not shown to have any expertise or special knowledge in this regard, was insufficient for this purpose.

A party asserting claims as subrogee on a summary judgment motion must show that those claims exist.

Begg & Daigle, Inc. v. Chemical Bank · filed 1991-09-10

As for defendant’s argument that it is entitled as subrogee to assert Newwall’s claims against plaintiff, defendant is required on a motion for summary judgment to show that there are such claims. It has not done so.

Section 3212(b) requires a party seeking summary judgment to submit admissible proof showing that the claim lacks merit.

Wilder v. Rensselaer Polytechnic Institute · filed 1991-07-25(b)

To prevail on a summary judgment motion, it is incumbent upon the moving party to tender evidentiary proof in admissible form which shows that the cause of action has no merit and thereby justifies the direction of summary judgment in the movant’s favor (CPLR 3212 [b]; see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967).

A party seeking summary judgment must present a prima facie case, even when the opposing party has failed to produce a document.

Cushman & Wakefield, Inc. v. Progress Corp. · filed 1991-04-04

This failure of proof precludes summary judgment regardless of the failure of the defendants to produce this document. It is the obligation of the plaintiff to present a prima facie case. If defendants improperly withheld evidence, sanctions may be proper, but not summary judgment.

Section 3212(b) requires a party seeking summary judgment to establish conclusively that all legal issues can be resolved on the papers and no factual issues remain.

Kronish v. Koffman · filed 1991-02-21(b)

It is well established that in order to warrant summary judgment, the moving party must conclusively establish that all legal issues are resolved on the papers, and no ...factual issues remain to be resolved (CPLR 3212 [b]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).

Section 3212 requires a party seeking summary judgment to establish a prima facie right to judgment.

Morales v. Cozy Brokerage, Inc. · filed 1991-02-07

Without addressing the ultimate merits of the case, we do hold that Allstate’s arguments, both below and on appeal, are insufficient to establish a prima facie right to summary judgment dismissing the cause of action asserted against it.

Section 3212(b) requires a defendant seeking summary judgment to establish a defense sufficiently to warrant judgment as a matter of law.

Lindsay v. Potter · filed 1990-07-13(b)

To prevail on a motion for summary judgment, defendant must establish his defense "sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212 [b]; ...).

Section 3212(b) requires a party moving for summary judgment to submit admissible evidence sufficient to warrant judgment in its favor.

Heffernan v. Colonie Country Club, Inc. · filed 1990-04-05(b)

To prevail on a summary judgment motion, it is incumbent upon the moving party to tender evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor (CPLR 3212 [b]).

CPLR 3212(b) requires a party moving for summary judgment to first submit admissible evidence sufficient to warrant judgment in its favor.

Brazell v. Board of Education of Niskayuna Public Schools · filed 1990-05-31(b)

To prevail on a summary judgment motion, it is incumbent upon the moving party to initially tender evidentiary proof in admissible form, sufficient to warrant the direction of summary judgment in his or her favor (CPLR 3212 [b]).

CPLR 3212(b) requires a summary judgment movant to establish entitlement to judgment with admissible evidence; an attorney affidavit without personal knowledge is insufficient.

Ciaccia v. Moore · filed 1990-03-16(b)

"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form”

CPLR 3212 requires a summary judgment movant to offer evidence supporting its motion; counsel’s affirmation alone is insufficient.

Gair Co. v. Cambridge Carpet Ltd. · filed 1990-04-12

Summary judgment was also properly denied since third-party defendants failed to offer any evidence that the plaintiff did not suffer damages. Further, third-party defendants improperly sought summary judgment on the affirmation of counsel, which was insufficient.

Section 3212(b) permits summary judgment when the movant submits sufficient admissible proof and the opposing party raises no triable issue of fact.

Stuart v. Town of Wells · filed 1990-05-31(b)

Defendant tendered evidentiary proof in admissible form sufficient to warrant granting summary judgment in its favor (see, CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to establish a cause of action sufficiently to warrant judgment as a matter of law; a prima facie case under res ipsa loquitur alone does not meet that burden.

Mays v. Children's Hospital · filed 1989-06-02(b)

In moving for summary judgment, plaintiff was required to establish her cause of action "sufficiently to warrant the court as a matter of law in directing judgment” in her favor (CPLR 3212 [b]; see also, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1967). Although plaintiff established a prima facie case that defendant’s negligence caused the initial injury to the infant (see, Hill v Highland Hosp., 142 AD2d 955), it does not follow that plaintiff is entitled to judgment as a matter of law.

Section 3212 requires a movant to establish entitlement to judgment as a matter of law; competing reasonable inferences about negligence preclude summary judgment.

Rennie v. Barbarosa Transport, Ltd. · filed 1989-06-22

After our review of the record in this negligence case, we find that the plaintiff has not made a sufficient showing to justify summary judgment (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]). We reach this conclusion since "summary judgment is inappropriate where * * * competing inferences may reasonably be drawn as to whether defendants’] conduct constituted negligence” (Myers v Fir Cab Corp., 64 NY2d 806, 808 [1985]).

CPLR 3212(b) requires a party moving for summary judgment to make an initial showing of entitlement to judgment.

Little v. City of Albany · filed 1989-10-19(b)

As a preliminary matter, we do find that, contrary to plaintiffs’ primary argument on appeal, the city has met its initial burden as the moving party of showing entitlement to summary judgment (see, CPLR 3212 [b]; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

A defendant seeking summary judgment must present admissible evidence showing that the claim lacks merit.

Jarzabek v. Tucci · filed 1989-11-15(b)

On this submission, it cannot be said that defendant has demonstrated entitlement to judgment as a matter of law (see, CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to establish its defense sufficiently to warrant judgment in its favor as a matter of law.

Green v. Kautex Machines, Inc. · filed 1990-03-16(b)

In moving for summary judgment, defendant was required to establish its defense "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]; Iselin & Co. v Mann Judd Landau, 71 NY2d 420). Defendant failed to do so.

A defendant moving for summary judgment must establish that the cause of action has no merit as a matter of law.

60 Minute Man, Ltd. v. Kossman · filed 1990-05-07(b)

A defendant moving for summary judgment has the burden of establishing that the cause of action has no merit as a matter of law (CPLR 3212 [b]).

A summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law, regardless of the sufficiency of the opposing papers.

Joswick v. Lenox Hill Hospital · filed 1990-05-10

Absent such testimony, and absent expert opinion by defendant that any delay during this period was not malpractice, defendant has not established a prima facie defense as a matter of law.

On a motion for summary judgment, the moving party must establish its position sufficiently to warrant judgment as a matter of law.

O'Bara v. Piekos · filed 1990-05-11(b)

In moving for summary judgment, defendants were required to establish their defense "sufficiently to warrant the court as a matter of law in directing [summary] judgment” in its favor (CPLR 3212 [b]; ...). Defendants failed to do so.

A party moving for summary judgment must offer sufficient admissible evidence to negate the existence of triable issues of fact.

Van Wormer v. McCasland Truck Center, Inc. · filed 1990-07-05

Merritt McCasland, as the proponent of this CPLR 3212 motion, must offer sufficient admissible evidence to negate the existence of triable issues of fact (see, Winegard v New York Univ. Med. Center, 64 NY2d 851, 853).

CPLR 3212(b) requires a summary judgment movant to establish entitlement to judgment in its moving papers.

Fezza v. Rogers · filed 1990-11-01(b)

Because nothing in Courtesy Mart’s moving papers denies that it shoveled the snow in this fashion, it has failed to demonstrate entitlement to summary judgment in the first instance (see, CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; Tambaro v City of New York, 140 AD2d 331, 332).

A summary judgment movant must establish its defense sufficiently to warrant judgment as a matter of law; unresolved factual issues require denial of the motion.

Hartwich v. American Transit Insurance · filed 1990-11-29(b)

In order to succeed in its motion, Burchetta was required to establish its defense sufficiently to warrant Supreme Court, as a matter of law, in directing judgment in its favor (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562). This Burchetta, as the movant, failed to do.

Under CPLR 3212(b), a party seeking summary judgment must submit admissible evidence sufficient to warrant judgment as a matter of law.

Ostrowski v. Massa · filed 1990-12-21(b)

Defendant failed to tender evidence in admissible form demonstrating that the use of the jackhammer did not affect the structural integrity of the porch. Defendant, therefore, has failed to establish his defense "sufficiently to warrant the court as a matter of law in directing judgment in [his] favor” (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557).

Under CPLR 3212(b), a summary judgment movant must offer admissible evidence sufficient to warrant judgment as a matter of law.

Tremco, Inc. v. Turk · filed 1991-02-01(b)

Defendants otherwise failed to proffer evidentiary proof in admissible form "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

Section 3212(b) requires a defendant seeking summary judgment to submit admissible evidence showing that the plaintiff’s claim lacks merit before the plaintiff must respond.

Zetko v. McDonald's Corp. · filed 1991-06-07(b)

At the time the court granted summary judgment, plaintiffs were not precluded from submitting medical evidence because no preclusion order had been granted; thus, it was improper to grant summary judgment unless defendants sustained their burden by submitting evidence in admissible form that plaintiffs’ cause of action has no merit (CPLR 3212 [b]). Defendants failed to meet that burden and they may not rely upon plaintiffs’ failure to show that their cause of action has merit.

A defendant seeking summary judgment on an inherently dangerous condition claim must show that the area was not inherently dangerous as a matter of law.

Eisenhart v. Marketplace · filed 1991-10-04

Since plaintiffs’ theory of liability is predicated on the notion that the construction of the common area where the fall occurred was "inherently dangerous” (Miller v Gimble Bros., 262 NY 107, 108), defendants, in order to succeed on their motion for summary judgment, were required to show that such area was not, as a matter of law, inherently dangerous (see, CPLR 3212; Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

Under CPLR 3212(b), a party moving for summary judgment must address the claims it seeks to dismiss to meet its initial burden.

Horton v. City of Schenectady · filed 1991-11-21(b)

Since defendant’s summary judgment motion papers did not address plaintiffs’ allegations of affirmative negligence, defendant did not meet its initial burden on a summary judgment motion with respect to those claims (see, CPLR 3212 [b]; Rogers v County of Saratoga, 144 AD2d 731, 732) and Supreme Court erred in granting defendant’s motion in its entirety.

Section 3212(b) requires a party seeking summary judgment to establish a claim or defense sufficiently to warrant judgment as a matter of law.

ICS/Executone Telecom, Inc. v. Mancuso · filed 1991-12-26(b)

Thus, defendant failed to establish his defense "sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212 [b]; Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

Section 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment as a matter of law before the burden shifts to the opposing party.

Graff v. Amodeo · filed 1991-12-31(b)

There is an initial burden upon a movant to make a prima facie showing of entitlement to summary judgment as a matter of law (see, CPLR 3212 [b]; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

Under CPLR 3212(b), a summary judgment movant must establish its cause of action sufficiently to warrant judgment as a matter of law.

Spancrete Northeast, Inc. v. Elite Associates, Inc. · filed 1992-06-08(b)

Accordingly, the plaintiff met its burden on this motion for summary judgment of establishing its cause of action sufficiently to warrant the court in directing judgment as a matter of law in its favor (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; CPLR 3212 [b]).

Under CPLR 3212(b), a defendant seeking summary judgment on a release defense must establish that no triable factual issue exists about the release’s validity.

Padilla v. New York City Transit Authority · filed 1992-06-29(b)

Here, the plaintiff submitted an affidavit stating that he never authorized his former attorney to settle his case, and that he never signed the release form. The Transit Authority did not counter this with any proof that the plaintiff had signed the release or that he authorized his attorney to settle the case. Since the Transit Authority failed to establish that no triable issue of fact existed as to the validity of the release, summary judgment may not be granted to it on the basis of this defense.

Under CPLR 3212(b), a summary judgment movant must affirmatively establish the merit of its claim or defense; pointing to gaps in the opponent’s proof does not meet that burden.

George Larkin Trucking Co. v. Lisbon Tire Mart, Inc. · filed 1992-07-14(b)

As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s proof, but must affirmatively demonstrate the merit of its claim or defense.

CPLR 3212(b) requires a summary judgment movant to submit admissible evidence showing the claim has no merit; an attorney’s assertion that the plaintiff lacks proof does not satisfy that burden.

Ciccatello v. Tops Friendly Markets, Inc. · filed 1992-10-07(b)

Supreme Court erred in granting defendant’s motion for summary judgment. ... Here, defendant’s motion relied on the affidavit of its attorney, which asserted that summary judgment was appropriate because plaintiff had not proven that defendant had notice of the injury-producing condition.

Section 3212(b) requires a summary judgment movant to tender admissible evidence sufficient to warrant judgment as a matter of law.

Bartholomew v. Troy Housing Authority · filed 1993-03-04(b)

It is axiomatic that in order to obtain summary judgment, the movant must establish the subject cause of action or defense " ' “sufficiently to warrant the court as a matter of law in directing judgment” in his [or her] favor’ ” and must do so by tender of evidentiary proof in admissible form (Zuckerman v City of New York, 49 NY2d 557, 562, quoting CPLR 3212 [b]). In our view defendant’s submitted proof fails to meet this required evidentiary threshold.

CPLR 3212(b) requires a summary judgment movant to establish its claim or defense sufficiently to warrant judgment as a matter of law.

Baldwin v. Foreston Development Corp. · filed 1993-04-12(b)

It is axiomatic that to obtain summary judgment " 'it is necessary that the movant establish [its] cause of action or defense "sufficiently 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, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

A summary judgment movant must show entitlement to judgment as a matter of law and the absence of any material issue of fact.

Williamson v. Citibank · filed 1993-04-13

The moving party, on a motion for summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact.

CPLR 3212(b) requires a summary judgment movant to meet an initial burden of proof; conclusory allegations are insufficient.

Bibeau v. Ward · filed 1993-05-06(b)

Because it seems evident that the allegations state a valid claim, and it being clear that the conclusory allegations set forth in defendant’s initial summary judgment papers are not sufficient to satisfy his initial burden of proof on such motions, in our view summary judgment likewise was properly denied as to this claim.

A party moving for summary judgment must meet its initial burden with competent evidence.

Cichon v. Brista Estates Associates · filed 1993-05-13(b)

Given the inadequacy of this information, we must conclude that Brista did not meet its initial burden on a summary judgment motion and this relief was appropriately denied (see, CPLR 3212 [b]).

Under CPLR 3212(b), a party moving for summary judgment must first present proof demonstrating entitlement to that relief.

Horton v. City of Schenectady · filed 1993-06-17(b)

We have examined the proof advanced by defendant in support of its summary judgment motion and conclude that its initial burden of demonstrating entitlement to this relief was met (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 554, 562).

Section 3212 requires a summary judgment movant to establish its entitlement to judgment as a matter of law.

Christie v. Ranieri & Sons · filed 1993-06-22

To succeed on its motion for summary judgment, defendant was required to show, as a matter of law, that demolition of the garages was not inherently dangerous (CPLR 3212). In our view, defendant failed to meet this burden.

Section 3212(b) requires a summary judgment movant to establish its claim or defense with admissible evidence sufficient to warrant judgment as a matter of law.

Bush v. St. Clare's Hospital · filed 1993-09-09(b)

It is well settled that proponents of motions for summary judgment must establish the cause of action or defense sufficiently to warrant the court as a matter of law to direct judgment in their favor (CPLR 3212 [b]), and by evidentiary proof in admissible form (Zuckerman v City of New York, 49 NY2d 557, 562). Defendant hospital failed to meet that standard.

Under CPLR 3212(b), defendants seeking summary judgment must show that the plaintiff’s cause of action has no merit.

McElligott v. Rochester-Genesee Regional Transportation Authority · filed 1993-10-01(b)

Defendants failed to meet their burden of showing that plaintiffs cause of action has no merit (see, CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967).

Section 3212 requires the moving party to establish its entitlement to summary judgment with admissible evidence before the opposing party must show a triable issue of fact.

Christiana v. Joyce International, Inc. · filed 1993-11-18(b)

The party opposing the motion need not "lay bare its proof’ and demonstrate the presence of a triable question of fact unless the movant has first established its right to judgment by means of admissible evidence.

Under CPLR 3212(b), a summary judgment movant must establish its defense sufficiently to warrant judgment as a matter of law.

D'Alfonso v. County of Oswego · filed 1993-11-19(b)

... defendants were required to establish their defense "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment before the court considers the opposing papers.

Pizzuto v. Poss · filed 1993-11-19(b)

The remaining submissions supporting defendants’ motion, including plaintiffs equivocal testimony at her examination before trial, fail to establish any of their defenses "sufficiently to warrant the court * * * in directing judgment in [their] favor” (CPLR 3212 [b]).

Under CPLR 3212(b), a summary judgment movant must establish a defense sufficient to warrant judgment as a matter of law.

Mattson v. Owens · filed 1993-11-19(b)

In moving for summary judgment, defendants Maple City Disposal and Steven Smith, individually and doing business as Maple City Disposal (defendants) were required to establish their defense "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

CPLR 3212(b) requires a summary judgment movant to present evidence sufficient to warrant judgment as a matter of law.

Cutrone v. American General Life Insurance · filed 1993-12-29(b)

Summary judgment was properly denied, however, because defendant failed to meet its burden of establishing the materiality of the misrepresentations in the reinstatement application "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]; see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

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

Pierce v. City of New York · filed 1994-03-03(b)

While Yonkers has failed on this motion to address its cause of action for breach of the contract provision relating to procurement of insurance, Rice-Mohawk has failed to show its entitlement to judgment as a matter of law with respect thereto.

Under CPLR 3212(b), a party seeking summary judgment must establish its defense sufficiently to warrant judgment as a matter of law.

Tucciarello v. Ironwil Associates · filed 1994-03-11(b)

Supreme Court properly granted summary judgment to fourth-party defendant Wilmorite, Inc. (Wilmorite) and dismissed the fourth-party complaint. Wilmorite met its burden of establishing its defense "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]) by demonstrating that it issued no instructions prohibiting the use of hydraulic or scissor lifts at the job site.

Under CPLR 3212, a party seeking summary judgment must show the absence of a triable issue of fact.

Gauchan v. Chase Manhattan Bank · filed 1994-05-03

The IAS Court erred in granting defendant’s motion for summary judgment where defendant failed to show, in this slip and fall personal injury action, the absence of a triable issue of fact.

A party seeking summary judgment based on its defenses must establish them sufficiently to warrant judgment in its favor.

Marine Midland Bank, N.A. v. Hallman's Budget Rent-A-Car of Rochester, Inc. · filed 1994-05-27(b)

Defendants’ cross motion for partial summary judgment dismissing plaintiff’s first, third, seventh, ninth and thirteenth causes of action was properly denied. Defendants did not meet their burden of establishing their defenses "sufficiently to warrant the court * * * in directing judgment in [their] favor” (see, CPLR 3212 [b]; Ayotte v Gervasio, 81 NY2d 1062).

A summary judgment movant must tender sufficient evidence to eliminate any material issue of fact.

Jeffcoat v. Andrade · filed 1994-06-16

The record reveals that moving defendant MJI established entitlement to judgment in its favor, as a matter of law, by tendering sufficient evidence, including the deposition testimony of defendant Andrade, to eliminate any material issue of fact from the case.

Under CPLR 3212(b), a party seeking summary judgment must establish entitlement to judgment on the challenged claims.

Kupke v. Mullane · filed 1994-08-15(b)

The defendants failed to establish that they were entitled to judgment in their favor on the causes of action sounding in nuisance. Accordingly, the Supreme Court properly denied summary judgment (CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to establish a claim or defense with admissible evidence sufficient to warrant judgment as a matter of law.

Cobrin v. County of Monroe · filed 1995-02-03(b)

To obtain summary judgment, a movant must establish his cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment” in his favor by tendering evidentiary proof in admissible form (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562). We conclude that the affidavit of defendant’s employee in support of defendant’s motion for summary judgment was merely conclusory and failed to establish the defense of lack of constructive notice "sufficiently to warrant the court as a matter of law in directing judgment” in favor of defendant.

Under CPLR 3212, when the party seeking summary judgment fails to meet its initial burden, the opposing party need not submit proof in response.

Grivas v. Port Authority · filed 1995-02-06

The defendant has failed to meet its burden on the motion for summary judgment and therefore there is no need for the plaintiff to come forward with any proof opposing the motion (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, supra).

Section 3212(b) does not warrant summary judgment for a defendant who has failed to establish prima facie entitlement to judgment as a matter of law.

Varone v. Delman · filed 1995-05-01(b)

To the extent that the defendant impliedly relies on our ability to search the record (see, CPLR 3212 [b]), we agree with the Supreme Court’s conclusion that the defendant failed to establish prima facie entitlement to judgment as a matter of law (see generally, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law with admissible evidence.

Storch v. Syracuse University · filed 1995-06-20(b)

The standard for evaluating motions for summary judgment is well established. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

Under CPLR 3212(b), a movant whose prima facie showing of no duty goes unrebutted is entitled to summary judgment.

Hood v. John Hancock Mutual Life Insurance · filed 1995-06-05(b)

Here, John Hancock, an out-of-possession landlord on a 99-year ground lease, proffered an unrebutted prima facie case that it had no duty, contractual or otherwise, to maintain or repair the walkway at issue. Accordingly, its motion for summary judgment should have been granted (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562-563; CPLR 3212 [b]).

CPLR 3212(b) requires a party seeking summary judgment to establish a cause of action sufficiently to warrant judgment as a matter of law.

Naman v. Sylveen Realty Co. · filed 1995-12-18(b)

However, since the plaintiff failed to establish his causes of action for wrongful eviction and conversion sufficiently to warrant the court to direct judgment in his favor as a matter of law, the plaintiff’s cross motion for partial summary judgment was properly denied (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) requires a party moving for summary judgment to make a prima facie showing of entitlement to judgment.

Miller v. City of Troy · filed 1996-02-29(b)

Therefore, defendant made a prima facie showing of entitlement to summary judgment relief (see, CPLR 3212 fb]; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires denial of summary judgment when the movant fails to present evidence showing that the claim has no merit.

Curtiss v. County of Livingston · filed 1996-09-27(b)

Further, no evidence was presented to show that the cause of action against Sheriff York has no merit {see, CPLR 3212 [b]).

A party seeking summary judgment must establish its cause of action sufficiently to warrant judgment as a matter of law.

Zylbergerg v. Eden II School for Autistic Children · filed 1996-10-07(b)

The plaintiffs did not establish their cause of action for breach of contract sufficiently to warrant the court as a matter of law in directing judgment in their favor (see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

CPLR 3212(b) requires a summary judgment movant to submit admissible evidence sufficient to establish its entitlement to judgment as a matter of law.

Chalson v. Jodi Bus Co. · filed 1996-10-28(b)

To obtain summary judgment the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, and it must do so by tender of evidentiary proof in admissible form (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562). The appellant failed to sustain its initial burden of establishing that it was entitled to judgment since the evidence presented was insufficient to prove, as a matter of law, that the injured plaintiff did not suffer his injuries on the bus owned by the appellant.

CPLR 3212(b) requires a summary judgment movant to support its claim or defense with admissible evidence sufficient to warrant judgment as a matter of law.

McCauley v. New York City Housing Authority · filed 1996-10-28(b)

To obtain summary judgment it is necessary that the movant establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, and it must do so by tender of evidentiary proof in admissible form (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires a summary judgment movant to show that no genuine issue of material fact remains on any relevant issue raised by the pleadings, including affirmative defenses.

Stone v. Continental Insurance · filed 1996-12-02(b)

CPLR 3212 (b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses (see, Aimatop Rest. v Liberty Mut. Fire Ins. Co., 74 AD2d 516). We find that questions of fact with respect to motive and incendiary origin necessitate denial of the plaintiffs’ motion.

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law with evidence eliminating material factual disputes.

Jabbour v. Albany Medical Center · filed 1997-03-13(b)

In order to prevail on the motion for summary judgment, it was incumbent on defendants, as movant, to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see, CPLR 3212 [b]).

CPLR 3212(b) requires a party moving for summary judgment to show entitlement to judgment as a matter of law.

Sweeney v. City of New York · filed 1996-12-05(b)

In order to be entitled to summary judgment, a moving party must show his or her entitlement to judgment as a matter of law (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]).

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law before the burden shifts to the opposing party.

Patricia YY. v. Albany County Department of Social Services · filed 1997-04-10(b)

A motion for summary judgment requires that the movant must initially establish as a matter of law entitlement to the judgment being directed in its favor.

Section 3212(b) requires a summary judgment movant to provide admissible evidence sufficient to establish entitlement to judgment as a matter of law.

Capitaland United Soccer Club, Inc. v. Capital District Sports & Entertainment, Inc. · filed 1997-04-17(b)

Additionally, summary judgment in favor of defendants was properly denied as they failed to establish their cause of action by providing evidentiary proof in admissible form sufficient to permit a court to direct judgment in their favor as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562; see also, CPLR 3212 [b]).

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

Dose v. Jenn-Matt Corp. · filed 1997-05-30(b)

The evidence submitted by plaintiffs fails to establish their entitlement to judgment as a matter of law (see, CPLR 3212 [b]).

CPLR 3212(b) requires a summary judgment movant to meet its initial burden with proof in admissible form.

Vonungern v. Morris Central School · filed 1997-06-19(b)

In our view, defendant failed to submit proof in admissible form proving that a particular substance was present and was safe on the date of the accident so as to meet its initial burden on the summary judgment motion (see, CPLR 3212 [b]).

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

Vittiglio v. Board of Commissioners · filed 1997-04-14(b)

The defendant established its prima facie entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557; Smith v County of Nassau, 232 AD2d 474).

Under CPLR 3212(b), evidence that a defendant did not own, maintain, or control the premises can establish a prima facie basis for summary judgment that the opposing party must overcome.

Ptaschnik v. Cennamo · filed 1997-04-28(b)

This evidence made out a prima facie case (see, CPLR 3212 [b]) of the appellant’s lack of ownership, ... control. The evidence submitted by the plaintiff in opposition to the cross motion failed to overcome the appellant’s showing.

Section 3212 requires a summary judgment movant to establish a prima facie entitlement to judgment as a matter of law.

Reed v. City of New York · filed 1997-04-28

The Supreme Court correctly denied the motion by the defendant Ryder Truck Leasing / Rental / Transportation Resources, Inc. (hereinafter Ryder), for summary judgment dismissing the complaint (see, CPLR 3212) inasmuch as Ryder failed to establish a prima facie entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; see also, CPLR 3212 [f]; Urcan v Cocarelli, 234 AD2d 537).

Section 3212(b) requires a party seeking summary judgment to make a prima facie showing that the evidence warrants judgment.

Rosmarin v. Lamontanaro · filed 1997-04-28(b)

The defendants’ evidence thus failed to make out a prima facie case (see, CPLR 3212 [b]) that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d).

Section 3212(b) permits an affirmed medical report to establish a prima facie case for summary judgment when it shows that the plaintiff did not sustain a serious injury.

Howell v. Williams · filed 1997-05-27(b)

Dr. Jacob Toledano’s affirmed report, which the defendant submitted in support of her motion, made out a prima facie case (see, CPLR 3212 [b]) that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d).

Section 3212(b) permits summary judgment when the moving party demonstrates entitlement to judgment as a matter of law.

Wheeler v. Town of Hempstead · filed 1997-04-28(b)

The appellant has demonstrated its entitlement to judgment ... in its favor as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Under CPLR 3212(b), a party moving for summary judgment must establish entitlement to judgment as a matter of law.

McKenica v. City of Tonawanda · filed 1997-05-30(b)

Supreme Court properly denied that motion. Defendants failed to establish their entitlement to judgment as a matter of law (see, CPLR 3212 [b]).

Section 3212 requires a summary judgment movant to establish entitlement to judgment; factual issues concerning negligence remain for trial.

Pelligrino v. Universal Maritime Service Co. · filed 1997-08-06

The court thus finds that Universal has failed to establish its entitlement to summary judgment by the authority of disinterested experts.

A party moving for summary judgment must present evidentiary facts sufficient to establish entitlement to judgment as a matter of law.

In re the Estate of Ward · filed 1997-08-11(b)

Furthermore, it is well settled that a party moving for summary judgment must set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law (see, CPLR 3212 [b]). ... Here, the court properly determined that the appellant had not sufficiently established that she was entitled to judgment as a matter of law.

Section 3212(b) requires a defendant seeking summary judgment to submit evidence establishing the absence of a triable issue of fact.

Skinner v. St. Juste · filed 1997-10-14(b)

The medical evidence submitted by the defendants in support of their motion for summary judgment failed to establish that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) (see, CPLR 3212 [b]).

Section 3212 requires a summary judgment movant to satisfy an initial burden of showing entitlement to judgment as a matter of law.

Velazquez v. Carns · filed 1997-11-06

In our view, the foregoing proof satisfied defendant’s initial burden entitling her to summary judgment as a matter of law.

Section 3212(b) requires a summary judgment movant to prove entitlement to judgment as a matter of law with evidence in admissible form.

Palumbo v. Innovative Communications Concepts, Inc. · filed 1997-12-09(b)

Defendant and third-party defendant must prove that they are entitled to summary judgment as a matter of law, pursuant to CPLR 3212 (b), by evidence in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). They do not do so.

Under CPLR 3212(b), a defendant seeking summary judgment can make a prima facie case by showing that the plaintiff did not sustain a serious injury.

Rameau v. King · filed 1997-12-29(b)

The evidence submitted by the defendant made out a prima facie case (see, CPLR 3212 [b]) that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d).

Section 3212(b) requires a summary judgment movant to establish a prima facie case for the relief sought.

Mastromonica v. Conklin · filed 1998-01-20(b)

The defendant’s motion papers failed to establish a prima facie case that the injuries sustained by the plaintiff Patricia Mastromonica were not serious (see, CPLR 3212 [b]; Mendola v Demetres, 212 AD2d 515).

Under CPLR 3212, an expert affidavit showing that treatment complied with accepted professional practice can establish a prima facie entitlement to summary judgment.

DeCurtis-Slifkin v. Kolbert · filed 1998-03-09

The defendant established his prima facie entitlement to summary judgment based on the affidavit of an expert that the treatment of the plaintiffs’ dog was consistent with accepted veterinary practice and that the effects of the anesthesia would have sufficiently dissipated to permit discharge of the dog to his owners.

Section 3212(b) permits summary judgment when defendants establish their entitlement to judgment as a matter of law.

Marchetti v. Avis Rent-A-Car System, Inc. · filed 1998-04-27(b)

The Supreme Court properly found that the defendants established their entitlement to judgment as a matter of law (see, CPLR 3212 [b]).

A movant seeking summary judgment under CPLR 3212 must establish entitlement to judgment as a matter of law.

Universal Gasoline Distributing Corp. v. McGas, Inc. · filed 1998-05-11

Furthermore, with respect to that branch of the appellants’ motion which was made pursuant to CPLR 3212 for summary judgment on the .first and third causes of action, the appellants failed to establish entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557).

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

Kleban & Samor, P. C. v. County of Nassau · filed 1998-05-04(b)

The Supreme Court properly denied the defendant’s motion for summary judgment as the defendant failed to establish its prima facie entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Under CPLR 3212(b), a summary judgment movant must show entitlement to judgment as a matter of law even if the opposing party fails to lay bare its proof.

AFA Protective Systems, Inc. v. Kaufman Eighth Avenue Associates · filed 1998-06-16(b)

We agree with the motion court that defendants failed to demonstrate their entitlement to judgment in their favor as a matter of law with respect to this issue, and, accordingly, that defendant’s motion in this respect had to be denied (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067), notwithstanding any failure by plaintiff to “lay bare” its proof in opposition to the motion (Pastoriza v State of New York, 108 AD2d 605, 606).

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law with evidentiary proof in admissible form.

Miranda v. Smyrna Building Corp. · filed 1998-06-16(b)

In order to obtain summary judgment, the movant must establish his cause of action sufficiently as a matter of law to warrant the court to direct judgment in his favor, which the movant must establish and support by a tender of evidentiary proof in admissible form (Zuckerman v City of New York, 49 NY2d 557 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; CPLR 3212 [b]).

Section 3212(b) places the initial burden on defendants seeking summary judgment to establish that they lacked actual or constructive notice of the alleged dangerous condition.

Richardson-Dorn v. Golub Corp. · filed 1998-07-16(b)

As the proponents of the motion for summary judgment, defendants had the initial burden of establishing that they lacked actual or constructive notice of an allegedly dangerous condition (see, Hughes v Carrols Corp., 248 AD2d 923). ... In our view, this proof was sufficient to satisfy defendants’ initial burden (see, CPLR 3212 [b]).

CPLR 3212(b) requires a summary judgment movant to show that the opposing cause of action has no merit.

Gould v. Syracusa · filed 1998-10-02(b)

Thus, the evidence submitted by defendants in support of the motion fails to show that the fraud cause of action has no merit (see, CPLR 3212 [b]).

A plaintiff who makes a prima facie showing of liability is entitled to summary judgment when the defendants fail to present sufficient rebuttal evidence.

Haylett v. New York City Transit Authority · filed 1998-06-08(b)

Furthermore, the defendants India Beverages and Diaz failed to present sufficient evidence to rebut the prima facie showing of liability with respect to Diaz’s operation of the moving vehicle which collided with the rear end of the stationary bus (see, Pfaffenhach v White Plains Express Corp., 17 NY2d 132, 135; see also, Gambino v City of New York, 205 AD2d 583). Therefore, the plaintiffs are entitled to summary judgment on the issue of liability as against the defendants India Beverages and Diaz (see, CPLR 3212 [b]).

A defendant’s prima facie showing supports summary judgment when the plaintiff fails to rebut it or establish a factual dispute.

Milici v. Maresca · filed 1998-08-31

The defendants have made a prima facie showing that they were not provided with any instructions or guidelines as to the use of resilient material for the equipment in question, or that they were otherwise aware of any such need. ... The plaintiffs have not rebutted this showing nor have they established that the equipment was installed in violation of known and accepted standards of safety.

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

International Shared Services, Inc. v. McCoy · filed 1999-03-22(b)

The moving party bears the initial burden of proving its entitlement, as a matter of law, to summary judgment by tendering evidentiary proof in admissible form (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562).

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

Judd v. Walton · filed 1999-03-31(b)

Defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see, CPLR 3212 [b]; *Ni**gro v Penree,* 238 AD2d 908, 908-909; Russell v Knop, 202 AD2d 959, 960).

A summary judgment movant must present admissible evidence showing that its opponent cannot prove an element of the claim; if it fails, summary judgment must be denied regardless of the opposing papers.

Tibodeau v. Abrahams · filed 1999-04-05

Assuming that the defendants’ motion should have been treated as one for summary judgment pursuant to CPLR 3212, they were required 'to present evidence in admissible form establishing that the plaintiffs were unable to prove any one of the three elements of a legal malpractice cause of action (see, Purificati v Meyer & Diensenhouse, 243 AD2d 697). The defendants failed to meet this burden, and, therefore, were not entitled to summary judgment, regardless of the adequacy of the plaintiffs’ opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law by demonstrating the absence of material factual issues.

Clifford v. Weisberg · filed 1999-04-12(b)

The proponent of a motion for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). ... Therefore, the defendant was not entitled to summary judgment (see, CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to present admissible evidence showing that the opposing claim has no merit; if the movant fails to meet that initial burden, the motion must be denied regardless of the opposing papers.

Pringle v. New York City Housing Authority · filed 1999-04-26(b)

The defendant’s motion for summary judgment was properly denied as it failed to present admissible evidence showing that the plaintiffs’ action has no merit (see, CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Cronin v Chrosniak, 145 AD2d 905).

CPLR 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment as a matter of law.

Berkun v. Validation Review Associates, Inc. · filed 1999-06-07(b)

The court properly denied that branch of the plaintiffs motion which was for summary judgment, inasmuch as the plaintiff did not make a prima facie showing sufficient to warrant judgment in his favor as a matter of law (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320).

Section 3212(b) requires the movant to establish entitlement to summary judgment even when the opposing papers are insufficient.

Estate of Unterweiser v. Town of Hempstead · filed 1999-06-07(b)

Therefore, the appellant was not entitled to summary judgment (see, CPLR 3212 [b]), regardless of the insufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

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

Metropolitan Suburban Bus Authority v. Mascioli · filed 1999-06-21(b)

The Supreme Court properly denied the plaintiffs motion for summary judgment, as it failed to demonstrate entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) requires a movant to establish entitlement to summary judgment.

King v. Seagrave · filed 1999-08-23(b)

The Supreme Court properly determined that the appellant failed to establish his entitlement to summary judgment dismissing the complaint insofar as asserted against him (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320).

Section 3212(b) requires a party seeking summary judgment to establish entitlement to judgment as a matter of law; sharply disputed facts make summary judgment inappropriate.

Smalls v. New York City Transit Authority · filed 1999-09-20(b)

The defendant New York City Transit Authority (hereinafter the NYCTA) failed to establish its entitlement to judgment as a matter of law regarding whether its employee, a bus driver, was acting beyond the scope of his employment during his altercation with a passenger (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Riviello v Waldron, 47 NY2d 297, 302). The circumstances surrounding the altercation are in sharp dispute such that summary judgment is inappropriate (see, Zuckerman v City of New York, supra; Jaccarino v Supermarkets Gen. Corp., 252 AD2d 572).

Section 3212(b) requires a summary judgment movant to present sufficient evidence to show entitlement to judgment as a matter of law and the absence of material factual disputes.

In re the Estate of Macaro · filed 1999-10-07(b)

It is settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact and entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Cox v Kingsboro Med. Group, 88 NY2d 904; Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562).

A summary judgment movant must submit admissible evidence establishing entitlement to judgment as a matter of law before the opponent must offer proof of a factual issue.

Spodek v. Feibusch · filed 1999-12-13(b)

By failing to submit evidence in admissible form, the plaintiff failed to establish his entitlement to judgment as a matter of law (see, CPLR 3212 [b]).

Under CPLR 3212, a summary judgment movant must submit admissible evidence showing entitlement to judgment as a matter of law and the absence of disputed material facts.

Dat v. City of New York · filed 2000-04-24

It is well settled that a party seeking summary judgment pursuant to CPLR 3212 has the burden of establishing entitlement to judgment as a matter of law by coming forward with evidentiary proof, in admissible form, demonstrating the absence of any disputed material facts ... Here, the plaintiffs failed to make the requisite showing of entitlement to summary judgment in their favor.

A summary judgment movant must set forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law.

Richards v. Wong · filed 2000-05-30(b)

The defendant Welbilt Corporation did not meet its initial burden of setting forth evidentiary facts sufficient to establish its entitlement to judgment as a matter of law dismissing the cause of action to recover damages based on common-law negligence insofar as asserted against it. Thus, the Supreme Court properly denied that branch of its motion (see, Alvarez v Prospect Hosp., 68 NY2d 320; CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment as a matter of law by demonstrating the absence of a material factual issue.

Safarian v. Blavatnik · filed 2000-06-05(b)

The defendants made a prima facie showing that they were entitled to judgment as a matter of law by offering sufficient evidence demonstrating the absence of any issue of material fact (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324).

A summary judgment movant must establish prima facie entitlement to judgment as a matter of law; otherwise, the motion must be denied regardless of the opposing papers.

Coto v. United Artists Theatre Circuit, Inc. · filed 2000-07-17

In support of its motion for conditional summary judgment on its third-party causes of action for common-law and contractual indemnification, and for summary judgment on its claim to recover damages for breach of contract to procure insurance, the defendant third-party plaintiff United Artists Theatre Circuit, Inc., failed to establish its prima facie entitlement to judgment as a matter of law ... Accordingly, its motion should have been denied, regardless of the sufficiency of the opposing papers of the third-party defendant, Pepeo Construction Corp.

A defendant seeking summary judgment based on lack of notice must make a prima facie showing affirmatively establishing the absence of notice as a matter of law.

Sagginario v. Jay-Jay Realty Co. · filed 2000-08-21(b)

We agree with the Supreme Court that the appellant failed to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Goldman v Waldbaum, Inc., 248 AD2d 436).

Section 3212(b) requires a summary judgment movant to support its entitlement to judgment as a matter of law with admissible evidence.

Way v. Grantling · filed 2000-09-26(b)

In order to obtain summary judgment, it is necessary that the movant establish a cause of action or defense “sufficiently to warrant the court as a matter of law in directing judgment” in its favor. (CPLR 3212 [b].) This must be accomplished by the tender of evidentiary proof in admissible form.

Section 3212 requires a summary judgment movant to establish a prima facie entitlement to judgment as a matter of law.

Joseph v. New York City Transit Authority · filed 2000-11-20

It is well settled that on a motion for summary judgment, the movant is required to set forth evidence establishing its prima facie entitlement to judgment as a matter of law.

CPLR 3212(b) allows a movant to establish a prima facie case for summary judgment with evidence showing it was not at fault.

Reddy v. Coca-Cola Bottling Co. · filed 2000-12-11(b)

Accordingly, the appellant established a prima facie case that it was not at fault in causing the accident (see, CPLR 3212 [b]).

CPLR 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment as a matter of law by showing that no material factual issue exists.

Law Offices of Valery Milgrom, P. C. v. Rigma America Corp. · filed 2000-10-10(b)

The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of any material issues of fact (see, CPLR 3212 [b]; Ayotte v Gervasio, 81 NY2d 1062; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Under CPLR 3212(b), affirmed medical reports can establish a prima facie case for summary judgment, shifting the burden to the opposing party to produce sufficient evidence.

Berrios v. Oddo · filed 2000-10-16(b)

The affirmed medical reports which the appellant submitted in support of her motion for summary judgment made out a prima facie case (see, CPLR 3212 [b]) that the plaintiff, Ricardo Berrios, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The burden therefore shifted to Berrios to come forward with sufficient evidence that he sustained a serious injury (see, Gaddy v Eyler, 79 NY2d 955; Grossman v Wright, 268 AD2d 79).

Section 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment as a matter of law by demonstrating the absence of material factual issues.

In re the Estate of Labua · filed 2000-10-16(b)

Contrary to the contention of the executrix, the Surrogate’s Court properly denied her motion for summary judgment as she failed to make a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of any material issues of fact with respect to the propriety of the payment of the hospital claim (see, ... CPLR 3212 [b]; Ayotte v Gervasio, 81 NY2d 1062; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

CPLR 3212(b) permits summary judgment when the movant shows entitlement to judgment as a matter of law by demonstrating the absence of a factual issue.

Lustgarten v. Oceanside Union Free School District · filed 2000-11-27(b)

The defendants made a prima facie showing that they were entitled to judgment as a matter of law by offering sufficient evidence demonstrating the absence of any issue of fact with respect to the creation of the condition, or actual or constructive notice (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Section 3212(b) requires a party seeking summary judgment to make a prima facie showing of entitlement to judgment as a matter of law.

Barretta v. Trump Plaza Hotel & Casino · filed 2000-12-11(b)

The defendant here made a prima facie showing that it was entitled to judgment as a matter of law (see, CPLR 3212 [b]; Safarian v Blavatnik, 273 AD2d 217).

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

Nevius v. Preferred Mutual Insurance · filed 2001-02-07(b)

Defendants failed to meet their burden of establishing the materiality of the misrepresentations “sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; see, Cutrone v American Gen. Life Ins. Co., 199 AD2d 1032, 1033).

Under CPLR 3212(b), a defendant seeking summary judgment must establish entitlement to judgment as a matter of law.

Goldfarb v. Kzichevsky · filed 2001-02-20(b)

The defendants failed to establish, as a matter of law, that they received no notice of the allegedly inadequate lighting or that the lighting condition was not a proximate cause of the decedent’s injury. The Supreme Court, therefore, properly denied their motion for summary judgment (see, CPLR 3212 [b]; cf., Rivas v Waldbaums Supermarket, 247 AD2d 600).

Section 3212(b) requires a summary judgment movant to make a prima facie showing before the burden shifts to the opposing party.

Falanga v. Logercio · filed 2000-12-18(b)

The physician’s affirmation submitted by the appellants in support of their cross motion for summary judgment made out a prima facie case (see, CPLR 3212 [b]) that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

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

Lyons v. North Shore University Hospital at Plainview · filed 2001-01-08

The materials submitted by the appellant in support of its motion for summary judgment were sufficient to establish, prima facie, entitlement to judgment as a matter of law. ... The plaintiffs contentions fail to raise a triable issue of fact that the defendant’s negligence caused his injuries. Accordingly, the defendant is entitled to summary judgment dismissing the complaint (see, CPLR 3212).

Under CPLR 3212(b), a defendant’s medical affirmation can make a prima facie showing for summary judgment, shifting the burden to the plaintiff to raise a triable issue of fact.

Estevez v. Lendy Electric Equipment & Supply Corp. · filed 2001-02-26(b)

The doctor’s affirmation submitted by the defendants in support of their motion for summary judgment made out a prima facie case (see, CPLR 3212 [b]) that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The burden therefore shifted to the plaintiff to come forward with sufficient evidence to raise a triable issue of fact that he sustained a serious injury (see, Gaddy v Eyler, 79 NY2d 955).

Under CPLR 3212(b), a supervisor’s affidavit can establish a prima facie basis for summary judgment when it shows that an employee was acting outside the scope of employment.

Kalil v. Zissis · filed 2001-03-05(b)

In an affidavit dated October 14, 1999, Milton Rios, who was the supervisor of Zissis on the day of the incident, stated that Zissis was never directed to visit the plaintiff’s workplace. This evidence established a prima facie case that Zissis was not acting within the scope of his employment when the incident occurred (see, CPLR 3212 [b]).

Section 3212(b) requires a defendant moving for summary judgment to present admissible proof warranting judgment as a matter of law; deposition testimony showing that the plaintiff cannot prove an element of the claim can satisfy that burden.

Wiwigac v. Snedaker · filed 2001-04-05(b)

First, although there can be no question that a defendant moving for summary judgment has the initial burden of coming forward with evidentiary proof in admissible form warranting the court as a matter of law in directing judgment in his or her favor (see, Zuckerman v City of New York, 49 NY2d 557, 562; CPLR 3212 [b]), that burden can be satisfied — as it was in this case — by a tender of deposition testimony evidencing the plaintiff’s inability to prove an element of his or her cause of action against the defendant (see, e.g., Sellars v Redondo, 270 AD2d 407; Strowman v Great Atl. & Pac. Tea Co., 252 AD2d 384; Wright v Rite-Aid of NY, 249 AD2d 931; Bortle v Pron Co., 203 AD2d 779, lv denied 84 NY2d 803).

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

Mychajluk v. Sanchez · filed 2001-04-09(b)

The Supreme Court properly denied the plaintiffs cross motion for partial summary judgment since she did not sustain her burden of proving her entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires a party moving for summary judgment to establish entitlement to judgment as a matter of law.

Harris v. Chen · filed 2001-05-02(b)

Defendant failed to meet his burden of establishing his entitlement to judgment as a matter of law with respect to those claims (see, CPLR 3212 [b]).