N.Y. C.P.L.R. § 3212

A summary judgment movant must submit admissible evidence showing no triable issue of fact.

Shortell v. County of Rockland · filed 2012-06-20(b)

Contrary to the Supreme Court’s determination, P&R established its prima facie entitlement to judgment as a matter of law by tendering evidentiary proof in admissible form demonstrating the absence of any triable issue of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

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

Markham Gardens L.P. v. 511 9th LLC · filed 2012-09-10

In the absence of any damages, an essential element of any breach of contract claim, Markham has failed to establish prima facie entitlement to judgment as a matter of law on its claim for breach of contract against PB Capital.

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

Stein v. Doukas · filed 2012-09-19

The defendants established, prima facie, that they were not in a fiduciary relationship with the plaintiff (cf. Benfeld v Fleming Props., LLC, 89 AD3d 654, 655 [2011]; East End Labs., Inc. v Sawaya, 79 AD3d 1095, 1096-1097 [2010]). In opposition, the plaintiff failed to raise a triable issue of fact (cf. Akkaya v Prime Time Transp., Inc., 45 AD3d 616, 617 [2007]). Consequently, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the fifth cause of action (see Goldfine v Sichenzia, 73 AD3d 854 [2010]).

A summary judgment movant must establish a prima facie entitlement to judgment with admissible proof; failure to do so requires denial regardless of the opposing papers.

In re Eshaghian · filed 2012-11-14(b)

Accordingly, the Surrogate’s Court correctly determined that the petitioners failed to establish their prima facie entitlement to judgment on the petition and, thus, properly denied their motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388).

A summary judgment movant must present enough evidence to establish entitlement to judgment as a matter of law and eliminate material issues of fact.

Villegas v. Malisky · filed 2012-12-17

“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 eliminate any material issues of fact.”

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law; failure to do so requires denial regardless of the opposing papers.

Wang v. New York State Department of Health · filed 2013-02-19(b)

To obtain summary judgment, a movant must establish his or her position “ ‘sufficiently to warrant the court as a matter of law in directing judgment’ ” in his or her favor (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212 [b]). ... The court concludes that DOH has failed to meet its burden of demonstrating its prima facie entitlement to judgment as a matter of law on these claims.

Section 3212 does not require a summary judgment movant to prove the elements of an exception that the opponent said did not apply in the trial court.

Erie Materials, Inc. v. Universal Group of New York, Inc. · filed 2012-12-27

... plaintiff had no affirmative obligation to prove the elements of that exception, including that it delivered the subject materials to Universal in good faith (see CPLR 3212; see also Matter of P.T. & L. Constr. Co. v Winnick, 59 AD2d 368, 370 [1977]).

A summary judgment movant must make a prima facie showing of entitlement to judgment by submitting the evidence needed to establish its claim.

L'Aquila Realty, LLC v. Jalyng Food Corp. · filed 2013-02-13(b)

The plaintiff did not demonstrate its prima facie entitlement to judgment as a matter of law on its complaint, because it failed to submit the relevant lease between it and the defendants/third-party plaintiffs (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; CPLR 3212 [b]).

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

In re Cameron K. · filed 2013-03-06

Furthermore, the father failed to establish his prima facie entitlement to judgment as a matter of law, and, accordingly, the alternative branch of his motion, which was for summary judgment dismissing the amended petition insofar as asserted against him, was properly denied.

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

In re Horowitz · filed 2013-03-12(b)

Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; ...).

Section 3212(b) requires a summary judgment movant to present affirmative proof sufficient to meet its initial burden.

In re Aiden XX. · filed 2013-03-28(b)

Under the circumstances, we cannot conclude that these equivocal statements and silences constituted affirmative proof of neglect sufficient to satisfy petitioner’s initial burden on a summary judgment motion (see CPLR 3212 [b]).

Under CPLR 3212, a party seeking summary judgment must first show entitlement to judgment as a matter of law.

Faler v. Haines · filed 2013-03-28

We hold that defendants did not meet their initial burden of demonstrating, as a matter of law, that the solar panels are not a nuisance within the meaning of the restrictive covenant.

Under CPLR 3212(b), a summary judgment movant must establish prima facie entitlement to judgment by showing that no triable issue of fact remains.

KSW Mechanical Services, Inc. v. DiFama Concrete, Inc. · filed 2013-03-20(b)

DiFama failed to establish its prima facie entitlement to judgment as a matter of law by tendering proof demonstrating the absence of any triable issue of fact as to whether its alleged negligence in relation to the January 14, 2008, accident caused damage to the plaintiffs property (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Section 3212 requires a summary judgment movant to make a prima facie showing of entitlement to judgment as a matter of law; otherwise, the motion must be denied regardless of the opposing papers.

Polish & Slavic Federal Credit Union v. Saar · filed 2013-04-03

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 (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers (id.).

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

MBIA Insurance v. Countrywide Home Loans, Inc. · filed 2013-04-29(e)

A party moving for summary judgment is required to make a prima facie showing that it is entitled to judgment as a matter of law by providing sufficient evidence to eliminate any material issues of fact from the case.

CPLR 3212(b) requires a party seeking summary judgment to show entitlement to judgment as a matter of law; a triable issue of fact precludes judgment.

Turner v. Owens Funeral Home, Inc. · filed 2013-08-06(b)

This court finds that neither defendant Hospital nor plaintiffs have made a prima facie showing of entitlement to summary judgment as a matter of law as to plaintiffs’ common-law cause of action.

A court must deny summary judgment when the movant fails to establish prima facie entitlement to judgment, regardless of the sufficiency of the opposing papers.

Ross v. Dd 11th Avenue, LLC · filed 2013-08-21(b)

Therefore, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240 (1) and 241 (6) insofar as predicated on an alleged violation of 12 NYCRR 23-2.2 (a), and dismissing the complaint insofar as asserted Chamo and Eleventh Avenue, L.E, regardless of the sufficiency of the plaintiffs opposition papers (see CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 851; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

CPLR 3212 requires a summary judgment movant to make a prima facie showing of entitlement to judgment by demonstrating the absence of material factual issues.

Galluscio v. Atico International U.S., Inc. · filed 2013-08-27

The motion by defendant Atico International U.S., Inc. for summary judgment pursuant to CPLR 3212 is denied. ... Accordingly, defendant has failed to provide a prima facie showing of entitlement to summary judgment as a matter of law on the fourth, fifth, sixth, and seventh causes of action by tendering sufficient evidence to demonstrate the absence of any material issues of fact.

Section 3212(b) requires a summary judgment movant to present facts establishing a prima facie entitlement to judgment.

American Transit Insurance v. Curry · filed 2013-10-08(b)

... plaintiff has failed to present facts establishing its prima facie claim and thus a basis for summary judgment as sought against Stand-Up MRI (CPLR 3212 [b]; ...), or a default judgment as sought against the nine other defendants.

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law through admissible evidence eliminating all material factual issues.

AMT CADC Venture, LLC v. 455 CPW, L.L.C. · filed 2013-10-18(b)

The moving parties, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact.

Section 3212(b) requires a summary judgment movant to show that no material factual dispute remains.

Quality Health Care Mgt. Inc. v. Kobakhidze · filed 2013-10-18(b)

At any rate, defendants have not met their burden to show the absence of a material factual dispute, and their motions seeking declaratory relief and dismissal of various causes of action are denied.

Section 3212 places the initial burden of production and persuasion on the party seeking summary judgment.

Bautista v. 85th Columbus Corp. · filed 2013-11-26

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion.

CPLR 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.

William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh · filed 2013-12-17(b)

This appeal comes to us in the posture of a summary judgment motion; thus we must consider whether Rabizadeh has met his burden to establish “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 [1986]; see also CPLR 3212 [b]).

Section 3212 requires a summary judgment movant to show entitlement to judgment as a matter of law with evidence that no material issue of fact remains.

Rockville Centre Housing Authority v. Whitfield · filed 2014-01-07

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact.

A party seeking summary judgment must establish entitlement to judgment as a matter of law.

HALFOND, IRA v. WHITE LAKES SHORES ASSOCIATION, INC · filed 2014-02-14(b)

We reject defendant’s contention in appeal No. 1 that Supreme Court erred in denying its cross motion inasmuch as we conclude that defendant failed to establish its entitlement to judgment as a matter of law (see generally CPLR 3212 [b]).

A party moving for summary judgment must submit admissible evidence establishing its prima facie entitlement to judgment.

Catskill Hudson Bank v. A&J Hometown Oil, Inc. · filed 2014-03-13(b)

Morgan did not meet its prima facie burden of establishing that it was entitled to sums that plaintiff allegedly “swept” from A&J’s bank accounts by producing admissible evidence substantiating its claims that the deposits into these accounts came from funds to which Morgan was entitled or, if so, in what amounts (see generally CPLR 3212 [b]; Repeti v McDonald’s Corp., 49 AD3d 1089, 1090-1091 [2008]).

A defendant seeking summary judgment on a substantial modification defense must establish entitlement to judgment as a matter of law.

Hoover v. New Holland North America, Inc. · filed 2014-04-01(b)

A defendant moving for summary judgment based on substantial modification must establish entitlement to that defense “sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]; see Green v Kautex Machs., 159 AD2d 945, 946 [1990]).

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

In re the Estate of Sanger · filed 2014-06-30(b)

Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]).

Section 3212(b) requires denial of summary judgment when the moving party fails to meet its initial burden, even if the opposition is insufficient.

FTBK Investor II LLC v. Genesis Holding LLC · filed 2014-08-19(b)

If the moving party fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in the opposition.

Under CPLR 3212(b), a movant who establishes prima facie entitlement to judgment as a matter of law shifts the burden to the opponent to present admissible evidence raising a triable issue of fact.

Cassidy v. City of New York · filed 2014-10-08(b)

As such, the defendants established the City’s prima facie entitlement to judgment as a matter of law, which shifted the burden to the plaintiff to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact to defeat the defendants’ motion (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

A summary judgment movant must first make a prima facie showing of entitlement to judgment as a matter of law; if it fails, the opposing party need not present evidence.

Moutopoulis v. 2075-2081 Wallace Avenue Owners Corp. · filed 2015-03-17

The proponent of a motion for summary judgment bears the initial burden of coming forward with evidence showing prima facie entitlement to judgment as a matter of law, and, unless that burden is met, the opponent need not come forward with any evidence at all. ... Accordingly, because plaintiff has failed to make a prima facie showing of entitlement to summary judgment, plaintiff’s motion for summary judgment is denied in its entirety.

A party moving for summary judgment must establish entitlement to judgment as a matter of law by showing that no material issue of fact remains.

Brown v. 44th Street Development, LLC · filed 2015-03-19

The standards for summary judgment are well settled. “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 eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

A defendant seeking summary judgment dismissing a legal malpractice complaint must show with admissible evidence that the plaintiff cannot establish at least one element of the claim.

Schrowang v. Biscone · filed 2015-05-07

As the proponent of a motion for summary judgment dismissing the complaint, defendant was required to demonstrate with admissible evidence that plaintiff was unable to establish at least one of the elements of her claim (see Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Sevey v Friedlander, 83 AD3d 1226, 1226 [2011], lv denied 17 NY3d 707 [2011]).

A party moving for summary judgment must show that no factual issue is disputed and that it is entitled to judgment as a matter of law.

Hermitage Insurance v. Beer-Bros, Inc. · filed 2015-05-12(b)

A party moving for summary judgment must demonstrate that there are no disputed issues of fact and that he, she, or it is entitled thereto as a matter of law, pursuant to CPLR 3212 (b) (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Pokoik v Pokoik, 115 AD3d 428 [1st Dept 2014]; see Hoover v New Holland N. Am., Inc., 23 NY3d 41, 56 [2014]).

Section 3212(b) requires a party seeking summary judgment to establish entitlement to judgment as a matter of law; the court denies the motion if that burden is unmet.

McHenry v. Bader · filed 2015-05-22(b)

Since defendants fail to meet their burden in establishing entitlement to judgment as a matter of law on plaintiff’s remaining claims for legal malpractice, interest, and nonapportionment of liability, however, the court denies defendants’ motion for summary judgment on plaintiff’s remaining claims.

A summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law by showing that no material factual issue remains.

Deleon v. New York City Sanitation Department · filed 2015-06-11(b)

As we have made clear, the summary judgment movant bears the heavy burden of establishing "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 [1986]; Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012][citations and quotations omitted]; see also CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment; without that showing, the court must deny the motion regardless of the opposing papers.

Alban v. Cornell University · filed 2015-06-11(b)

Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. ... Based on the record before it, the court finds that the defendant has not made a prima facie showing of entitlement to judgment as a matter of law.

A party moving for summary judgment must first establish entitlement to judgment as a matter of law.

BAUSCH & LOMB INCORPORATED v. RES EXHIBIT SERVICES, LLC · filed 2015-06-12(b)

Defendant failed to meet its initial burden of establishing ... its entitlement to judgment as a matter of law with respect to those items (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Section 3212 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.

Collado v. New York City Health & Hospitals Corp. · filed 2015-06-29

On a motion for summary judgment, the proponent must tender “sufficient evidence to demonstrate the absence of any material issues of fact” to make out a prima facie showing that it is entitled to judgment as a matter of law.

Section 3212 requires a summary judgment movant to make a prima facie showing that no material issue of fact remains.

Pizzo-Juliano v. Southside Hospital · filed 2015-06-03

Pursuant to CPLR 3212, the defendant failed to establish, prima facie, that he owed no duty to the infant plaintiff as the hospital’s on-call plastic surgeon (see Thomas v Hermoso, 110 AD3d at 986; Clarke v Union Hosp. of Bronx, 6 AD3d 229, 230 [2004]; Dillon v Silver, 134 AD2d 159 [1987]).

A summary judgment movant must make a prima facie showing that a defense pleaded in the answer has no merit.

Ahmad v. City of New York · filed 2015-06-04(b)

Plaintiffs motion, based on his testimony given at a hearing pursuant to General Municipal Law § 50-h, was properly denied because he failed to make a prima facie showing that the defense of probable cause pleaded by defendants in their answer “has no merit” (CPLR 3212 [b]; see Davis v City of New York, 100 AD3d 822 [2d Dept 2012]).

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

Citibank, N.A. v. Cabrera · filed 2015-07-22(b)

On its motion for summary judgment, the plaintiff had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 561 [1980]).

Section 3212(b) places the initial burden of proof on the party moving for summary judgment.

Hecker v. Liebgold · filed 2015-07-01(b)

In the context of this pretrial motion for summary judgment, the defendant, the moving party, has the initial burden of proof (see CPLR 3212 [b]).

A summary judgment movant must first eliminate material factual issues; if it fails, the court need not assess the opposing proof.

Dylan P. Ex Rel. Raisa L. v. Webster Place Associates, L.P. · filed 2015-10-20(b)

Although the dissent has examined the substance of plaintiffs' opposition and found it lacking, in view of defendant's failure to tender sufficient evidence to eliminate any material issues of fact on the issue of constructive notice, we need not address the sufficiency of such opposition ( see Winegrad v New York Univ. Med. Ctr ., 64 NY2d 851, 853 [1985]).

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

In re U.S. Bank National Ass'n · filed 2015-12-18(b)

The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment.” ... After consideration of the evidence in this record, the court finds that the trustees have made a prima facie showing of entitlement to judgment as a matter of law.

A summary judgment movant must present evidence showing no material issue of fact; if the movant fails to meet that initial burden, the court need not consider the opposing evidence.

Korn v. Korn · filed 2016-01-07(b)

To prevail on their motion, the Wassermanns were required to establish their entitlement to judgment as a matter of law by "tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see CPLR 3212 [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). ... In the absence of evidentiary facts establishing the Wassermanns' right to maintain action No. 2, their initial prima facie burden has not been met and we need not consider whether the evidence submitted by defendant was sufficient to raise a triable issue of fact (see Town of Sidney v Scutt, 117 AD3d 1220, 1220-1221 [2014]; Salas v Town of Lake Luzerne, 265 AD2d 770, 770-771 [1999]).

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

1515 Macombs, LLC v. Jackson · filed 2015-11-23(b)

With respect to that portion of the motion seeking summary judgment, it is well-settled that summary judgment requires the proponent to 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 [1986]; see CPLR 3212 [b]), and that there are no defenses as a matter of law (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

A summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law.

Jagroop v. Ramdhanny · filed 2016-02-05(b)

In contrast, Ramdhanny did make a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint as against her (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

A defendant moving for summary judgment must establish a defense as a matter of law with evidence that eliminates material factual disputes.

Maria De Lourdes Torres v. Police Officer Jones · filed 2016-02-23(b)

Considering the aforementioned law in the context of a summary judgment motion, the defendant moving for summary judgment must establish a defense to the plaintiff's malicious prosecution and false arrest claims as a matter of law by submitting sufficient evidence to eliminate any material issues of fact (see CPLR 3212 [b]; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 - 27 - - 28 - No. 21 [2014]; see also MacDonald v Town of Greenburgh, 112 AD3d 586, 586-587 [2d Dept 2013]).

Section 3212 requires the moving party to establish prima facie entitlement to summary judgment with admissible evidence; failure to do so requires denial regardless of the opposing papers.

Grant v. Fadhel · filed 2016-03-22(b)

Without Fadhel’s and Grant’s deposition testimony, Fadhel’s motion papers contain no allegations of the factual grounds asserted in support of the motion by anyone with personal knowledge. Accordingly, Fadhel has not demonstrated prima facie entitlement to dismissal of the complaint.

Section 3212 requires a summary judgment movant to submit sufficient admissible evidence showing no material issue of fact and entitlement to judgment as a matter of law.

McKenna v. Reale · filed 2016-03-31

Generally, to succeed on a motion for summary judgment, a defendant must submit sufficient admissible evidence to establish the absence of any material issues of fact and to warrant judgment as a matter of law in his or her favor (see CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

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

Khadka v. American Home Mortgage Servicing, Inc. · filed 2016-05-11(b)

Contrary to the defendant’s contention, the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the complaint. In support of its motion, the defendant failed to make a prima facie showing of entitlement to judgment as a matter law.

Section 3212 requires a summary judgment movant to make a prima facie evidentiary showing of entitlement to judgment; otherwise, the motion must be denied regardless of the opposing papers.

Flowers v. City of New York · filed 2016-08-05

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v New York Univ. Med. Ctr, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Section 3212 permits summary judgment when the movant makes an unrebutted prima facie showing of entitlement to judgment.

Al Acupuncture, P.C. v. Praetorian Ins. Co. · filed 2016-10-13

As defendant's prima facie showing that the services were not medically necessary was unrebutted by plaintiff, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment on the claims at issue, the order, insofar as appealed from, is reversed and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009 is granted.

A summary judgment movant’s failure to establish prima facie entitlement to judgment makes review of the opposition papers unnecessary.

Arana v. Kish · filed 2016-11-02

Because the Patterson defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is not necessary to review the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

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

Messina v. Lippman · filed 2016-12-07

With respect to the order entered February 27, 2015, we find that the Civil Court properly denied defendant's motion for summary judgment, as defendant failed to make a prima facie showing of entitlement to judgment as a matter of law.

Under CPLR 3212(b), deposition testimony can establish a prima facie entitlement to summary judgment when it shows the movant did not create the condition at issue.

Orofino v. 388 Realty Owners, LLC · filed 2017-01-12(b)

Mourne established prima facie that it did not create the condition that caused plaintiff’s fall on December 18, 2009, by submitting the deposition testimony of its principal, who testified that Mourne finished building the wall around December 8, left the work area spotless and free of debris before leaving that day, and did not return to the job site to perform caulking work until January 2010 (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

St. Barnabas Hospital v. Government Employees Insurance Co. · filed 2017-02-01

The plaintiff has failed to establish a prima facie showing that it is entitled to judgment as a matter of law on its claim to recover no-fault medical payments.

A summary judgment movant meets its initial burden by showing entitlement to judgment as a matter of law and the absence of material factual issues.

Stonehill Capital Management LLC v. Bank of the West · filed 2016-12-20(b)

We conclude therefore that Stonehill met its prima facie burden on summary judgment by showing that BOTW accepted Stonehill’s bid to purchase the Goett Loan and the parties entered a binding agreement to complete the sale, BOTW breached that agreement, and the breach caused Stonehill to suffer monetary damages.

CPLR 3212 requires a summary judgment movant to establish a prima facie entitlement to judgment with admissible evidence, regardless of the sufficiency of the opposing papers.

Zuniga v. BAC Home Loans Servicing, L.P. · filed 2017-02-08

While the defendant also moved, in the alternative, for summary judgment pursuant to CPLR 3212, it failed to demonstrate the admissibility of the records relied upon by its affiant under the business records exception to the hearsay rule (see CPLR 4518 [a]) and, therefore, failed to establish, prima facie, that the promissory note remained unpaid (see HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952 [2016]). Accordingly, the defendant was not entitled to summary judgment dismissing the only surviving portion of the plaintiffs’ cause of action, which was predicated on the allegation that the subject promissory note has been satisfied, regardless of the sufficiency of the papers submitted in opposition (see US Bank N.A. v Madero, 125 AD3d 757 [2015]).

A defendant moving for summary judgment under CPLR 3212 must establish prima facie entitlement to judgment.

Cortes v. MMC Residential Corp., I., Inc. · filed 2017-05-02

As the movant on a motion to dismiss the complaint pursuant to CPLR 3212, the burden is on defendant to establish its prima facie entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Under CPLR 3212(b), the burden shifts to the opposing party only after the summary judgment movant establishes entitlement to judgment.

Olsen v. Campbell · filed 2017-05-11(b)

As such, we find that defendant failed to meet his burden of demonstrating that he was entitled to summary judgment such that the burden never shifted to plaintiff.

A summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law and the absence of triable factual issues.

In Re the Estate of Bordell · filed 2017-05-11(b)

As Basic has presented no evidence to overcome the presumption that the waiver was properly executed and has not raised a contention that would invalidate the waiver as a matter of law, Surrogate’s Court properly denied Basic’s motion for summary judgment.

Section 3212(b) requires a summary judgment movant to establish its claim and eliminate material issues of fact.

Breslin Realty Dev. Corp. v. Nassi · filed 2017-05-23(b)

At the time plaintiff introduced Design House to defendant as a prospective tenant, the exclusive right to lease agreement had expired, and, in the papers it submitted in support of its motion, plaintiff failed to [*2] eliminate any material issues of fact from the case or to establish its cause of action sufficiently to warrant the court directing judgment in its favor thereunder ( see CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557, 562 1980]).

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law by eliminating material issues of fact.

Sardar v. Park Ambulance Service Inc. · filed 2017-05-23(b)

“Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant’s papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion” ... In light of the foregoing, the defendants have not made a prima facie showing that they are free from liability in the causing of the subject accident.

When a summary judgment movant fails to meet its initial burden, the court need not consider the sufficiency of the opposition.

Ananiadis v. Mediterranean Gyros Products, Inc. · filed 2017-06-21(b)

Since the defendants failed to satisfy their initial burden on the branches of their renewed motion which were for summary judgment dismissing the causes of action alleging that Mavridopoulos and Malamis aided and abetted Memmos’s sexual harassment of Karan and Peraica, respectively, and that Mavridopoulos unlawfully retaliated against Karan and aided and abetted retaliation against her, it is unnecessary to consider the sufficiency of the plaintiffs’ submissions in opposition (see La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d at 922).

CPLR 3212 requires a defendant seeking summary judgment based on statutory immunity to establish entitlement to that immunity as a matter of law.

Cummings v. Manville · filed 2017-07-07

Accordingly, we conclude that defendant failed to meet his burden of establishing that he is entitled as a matter of law to immunity under General Obligations Law § 9-103, and thus the court erred in granting defendant’s motion for summary judgment dismissing the complaint.

Section 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment; an affidavit lacking personal knowledge cannot establish the absence of a triable issue.

North River Insurance Co. v. Duro Dyne National Corp. · filed 2017-08-23(b)

Therefore, his affidavit was insufficient to demonstrate the absence of any triable issues of fact with respect to whether the asbestos exclusion was properly added to the policy (see CPLR 3212 [b]; Republic Natl. Bank of N.Y. v Luis Winston, Inc., 107 AD2d 581, 582 [1985]).

CPLR 3212 requires a summary judgment movant to establish prima facie entitlement to judgment before the sufficiency of the opposition papers matters.

North Shore Architectural Stone, Inc. v. American Artisan Construction, Inc. · filed 2017-09-27

Moreover, Cina’s affidavit, in which he merely averred that he never acted in a “personal capacity” with respect to the relevant transactions, was insufficient to demonstrate prima facie entitlement to judgment as a matter of law dismissing the conversion and fraud causes of action insofar as asserted against him (see Greenway Plaza Off. Park-1 v Metro Constr. Servs., 4 AD3d at 329-330). Thus, without regard to the sufficiency of the opposition papers, the defendants were not entitled to dismissal of those causes of action insofar as asserted against Cina pursuant to CPLR 3212 (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Under CPLR 3212(b), a summary judgment movant must provide evidence establishing entitlement to judgment as a matter of law before the burden shifts to the opposing party.

Kurcias v. 1043 Rest. Corp. · filed 2017-11-28(b)

Although several of its delivery personnel testified that they were not involved in the accident, defendant did not submit affidavits from its undeposed employees who worked as bicycle delivery persons at the time of the accident averring that they had no involvement in the collision with plaintiff, or, alternatively, from someone else with that same knowledge (see CPLR 3212 [b]; compare Morales v Living Space Design, 278 AD2d 48 [1st Dept 2000]).

A party seeking summary judgment must establish the facts entitling it to relief as a matter of law.

County of Monroe v. Clough Harbour & Associates, LLP · filed 2017-10-06

We conclude that the court properly denied plaintiffs’ motion for summary judgment seeking the requested declaration. Contrary to plaintiffs’ contention, the indemnification provision at issue is triggered only in the event of a finding of an intentional or negligent act by defendant and, on this record, plaintiffs have failed to show either one as a matter of law (see Bellreng v Sicoli & Massaro, Inc. [appeal No. 2], 108 AD3d 1027, 1031 [2013]; Guarnieri v Essex Homes of WNY, 24 AD3d 1266, 1266-1267 [2005]).

Section 3212(b) requires a summary judgment movant to present enough evidence to establish its claim as a matter of law.

RES Exhibit Services, LLC v. Genesis Vision, Inc. · filed 2017-11-09(b)

Although defendant, as the party seeking to avoid liquidated damages, bears the ultimate burden of establishing that the clause is unenforceable (see 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 536 [2014]; JMD Holding Corp., 4 NY3d at 380), plaintiff, as the party moving for summary judgment, has the burden of tendering sufficient evidence to demonstrate that its “cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]; see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see generally Collado v Jiacono, 126 AD3d 927, 928 [2d Dept 2015]).

A summary judgment movant must first establish entitlement to judgment as a matter of law; failure to do so requires denial of the motion regardless of the opposing papers.

Palumbo v. Bristol-Myers Squibb Co. · filed 2018-02-02(b)

It is well established that "[a] party moving for summary judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment' in the moving party's favor" ( Jacobsen v New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014], quoting CPLR 3212 [b]). ... We conclude that defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law on his statute of limitations defense.

A party seeking partial summary judgment must make a prima facie showing that no material factual issue prevents judgment as a matter of law.

Clause v. Globe Metallurgical, Inc. · filed 2018-04-27

As the proponents of the motion for partial summary judgment, plaintiffs were required 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 [1985]). Plaintiffs failed to meet that burden with respect to the Labor Law § 240 (1) claim.

A summary judgment motion must be supported by evidentiary proof; without it, the motion is denied regardless of the opposing papers.

Neve v. City of New York · filed 2018-09-26(b)

Since the plaintiff submitted no evidentiary proof in support of his motion, the Supreme Court properly denied it, regardless of the sufficiency of the City's opposing papers ( see CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557, 562).

Section 3212 requires a summary judgment movant to show entitlement to judgment as a matter of law and the absence of material factual issues; a conclusory affidavit does not satisfy that burden.

Kasack Enters., Inc. v. JTL Constr. Corp. · filed 2019-02-21

On a motion for summary judgment, the burden rests with the moving party to make a prima facie showing they are entitled to judgment as a matter of law and demonstrate the absence of any material issues of fact (CPLR § 3212; Friends of Thayer lake, LLC v. Brown, 27 NY3d 1039 [2016]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). ... Notwithstanding, Hulbert's conclusory affidavit and W-2 t~x document are insufficient to show, as a matter of law, his entitlement to summary Judgment.

Section 3212(b) requires a summary judgment movant to meet an initial burden; a motion must be denied when the movant's own evidence raises triable issues of fact.

Aja v. Richter · filed 2019-08-22(b)

Contrary to defendant's contention, viewing the evidence in the light most favorable to plaintiff, as we must ( see Branham v Loews Orpheum Cinemas, Inc. , 8 NY3d 931, 932 [2007]), we conclude that defendant failed to meet his initial burden on the motion ( see Winegrad v New York Univ. Med. Ctr ., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York , 49 NY2d 557, 562 [1980]; see also CPLR 3212 [b]). Defendant's own submissions, which included his deposition testimony, raised triable issues of fact with respect to defendant's duty.

Section 3212(b) requires a summary judgment movant to meet its prima facie burden, regardless of the sufficiency of the opposing papers.

Emigrant Bank v. Brown · filed 2019-09-25(b)

Accordingly, because the plaintiff failed to meet its prima facie burden, we agree with the Supreme Court's denial of those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the borrowers and dismissing the borrowers' sixth affirmative defense, regardless of the sufficiency of the borrowers' opposition papers ( see CPLR 3212[b]; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853; cf. U.S. Bank N.A. v Echevarria , 171 AD3d 979).

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

Jackson v. Rumpf · filed 2019-11-15(b)

Viewing the evidence in the light most favorable to defendant, the nonmoving party ( see Branham v Loews Orpheum Cinemas, Inc. , 8 NY3d 931, 932 [2007]), we conclude that plaintiff failed to meet her prima facie burden on the motion of establishing as a matter of law that defendant was negligent in permitting a dangerous or defective condition to exist on the premises ( see generally Winegrad v New York Univ. Med. Ctr ., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York , 49 NY2d 557, 562 [1980]; see also CPLR 3212 [b]).

A defendant seeking summary judgment must offer evidence from a witness with knowledge establishing that its employees did not cause or create the alleged defect.

O'Connor v. Tishman Constr. Corp. · filed 2020-04-23(b)

Although it is undisputed that the alleged defect is a remnant of a street sign, the Tishman defendants did not meet their initial burden because they failed to submit an affidavit or deposition testimony from a witness with knowledge that establishes that its employees did not cause or create the alleged defect ( see CPLR 3212[b]).

Under CPLR 3212(b), a summary judgment movant must establish prima facie entitlement to judgment as a matter of law; if it fails, the court need not assess the opposing papers.

Rose v. Different Twist Pretzel, Inc. · filed 2020-08-12(b)

Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, and their cross motion for summary judgment dismissing the cause of action alleging tortious interference with contract insofar as asserted against them should have been denied ( see generally CPLR 3212[b]). As the defendants failed to satisfy their prima facie burden, the sufficiency of the plaintiff's opposition papers need not be addressed ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853).

Section 3212 requires a summary judgment movant to establish a prima facie entitlement to judgment with evidence; an unsupported attorney affirmation is insufficient.

Plasencia v. Collado · filed 2020-09-24

The Court finds that Plaintiff failed to meet her burden of establishing a prima facie showing of entitlement to summary judgment as a matter of law on the issue of liability since she relied only on her attorney's Affirmation, she did not subm it any further evidence nor did she submit her own affidavit rega rd ing the accident in support of her motion .

CPLR 3212 requires a summary judgment movant to present sufficient evidence showing entitlement to judgment as a matter of law and the absence of material factual issues.

Cach, LLC v. Khan · filed 2020-11-25

Pursuant to CPLR 3212, on a motion for summary judgment, the moving party 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).

Section 3212 requires a party seeking summary judgment dismissing an adultery claim to establish prima facie entitlement to judgment as a matter of law.

Agulnick v. Agulnick · filed 2020-12-09

A party moving for summary judgment dismissing an adultery cause of action is subject to the same evidentiary standard as the proponents of summary judgment generally, namely, the demonstration of a prima facie entitlement to the requested relief as a matter of law ( see Winegrad v New York Univ. Med. Ctr ., 64 NY2d at 853; Zuckerman v City of New York , 49 NY2d at 562; Friends of Animals v Associated Fur Mfrs ., 46 NY2d at 1067).

A party moving for summary judgment must present evidence showing entitlement to judgment as a matter of law and the absence of a triable issue of fact.

Beco v. Ritter · filed 2021-01-14(b)

As the moving parties, it was plaintiffs' burden to establish their entitlement to summary judgment as a matter of law by presenting sufficient evidence to demonstrate the absence of a triable issue of fact ( see CPLR 3212 [b]; Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986]; Loch Sheldrake Beach & Tennis Inc. v Akulich , 141 AD3d 809, 812 [2016], lv dismissed 28 NY3d 1104 [2016]).

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

Horst v. City of Syracuse · filed 2021-02-05(b)

It is well established that "[a] party moving for summary judgment must demonstrate that 'the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment' in the moving party's favor" ( Jacobsen v New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014], quoting CPLR 3212 [b]; see Zuckerman v City of New York , 49 NY2d 557, 562 [1980]).

A party seeking summary judgment must tender sufficient evidence showing the absence of material issues of fact.

Von Maack v. Wyckoff Hgts. Med. Ctr. · filed 2021-06-09

As the plaintiff failed to tender sufficient evidence demonstrating the absence of any material issues of fact ( see CPLR 3212; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853), her motion was properly denied.

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law and show that there is no defense to the claim.

Masheh v. JHF Mgt., LLC · filed 2021-12-23(b)

On his motion, plaintiff bore the initial burden of establishing his prima facie entitlement to judgment as a matter of law and to "show that there is no defense to [his] cause of action" for wrongful eviction (CPLR 3212 [b]; see generally Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985]).

Under CPLR 3212(b), a moving party must first show that no material factual issue requires trial; failure to do so requires denial of summary judgment regardless of the opposing papers.

WFE Ventures, Inc. v. GBD Lake Placid, LLC · filed 2021-08-12(b)

As longstanding case law reflects, "[s]ummary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's failure to make [such] prima facie showing . . . requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Vega v Restani Constr. Corp. , 18 NY3d 499, 503 [2012] [internal quotation marks, brackets, emphasis and citations omitted]; see CPLR 3212 [b]).

CPLR 3212(b) requires the moving party to make a prima facie showing that no material factual issue exists; only then must the opposing party show an issue requiring trial.

Davis v. Zeh · filed 2021-12-09(b)

"Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( WFE Ventures, Inc. v GBD Lake Placid, LLC , 197 AD3d 824, 827 [2021] [internal quotation marks, brackets, ellipsis and citations omitted]; see CPLR 3212 [b]).

Section 3212(b) requires supporting summary judgment papers to include an affidavit from someone with personal knowledge of the facts.

Mendez v. Apple Bank for Savings · filed 1989-05-09(b)

Furthermore the supporting motion papers must include an affidavit by an individual having personal knowledge of the facts. (CPLR 3212 [b].) As is explained below neither of these requirements have been satisfied and plaintiffs motion must therefore be denied.

Section 3212(b) calls for a summary judgment motion to be supported by an affidavit from someone with personal knowledge of the facts or an acceptable substitute, such as deposition testimony.

Harris v. City of New York · filed 1989-06-13(b)

It is significant that, in support of its cross motion, the city refrained from submitting an affidavit by anyone with personal knowledge of the facts (CPLR 3212 [b]) or an acceptable substitute for an affidavit, such as deposition testimony (Olan v Farrell Lines, 64 NY2d 1092).

Section 3212(b) makes a summary judgment motion premature if filed before joinder of issue.

Cohn v. Rothman-Goodman Management Corp. · filed 1989-11-20(b)

Apart from the fact that the record reveals the existence of material issues of fact regarding the substance of the plaintiff’s claim, the plaintiff’s motion, made before joinder of issue, was premature (see, CPLR 3212 [b]).

A party opposing summary judgment must produce admissible evidence of a triable issue; conclusory hearsay attached to an attorney’s affidavit alone is insufficient.

Phillips v. Baird · filed 1989-12-20(b)

The exhibit annexed to an attorney’s affidavit which purports to be "a record apparently maintained in the town highway department files” constitutes hearsay, is conclusory and may not form the sole basis to defeat defendants’ summary judgment motion (see, Friends of Animals v Associated Fur Mfrs., supra; Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540).

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

Caruso v. Board of Managers of Murray Hill Terrace Condominium · filed 1990-01-09(a)

To the extent that defendant seeks summary judgment dismissing the complaint, the motion is premature, since issue has not been joined (CPLR 3212 [a]; Alro Bldrs. & Contrs. v Chicken Koop, 78 AD2d 512 [1st Dept 1980]).

Section 3212(b) permits a party to support a summary judgment motion with an attorney’s affirmation attaching deposition testimony instead of affidavits based on personal knowledge.

Rabadi v. County of Westchester · filed 1990-04-16(b)

We find that the respondents set forth sufficient evidentiary proof in admissible form in support of their motion for summary judgment (see, CPLR 3212 [b]). The fact that their supporting proof was placed before the court by way of an attorney’s affirmation annexing the plaintiffs’ deposition testimony, rather than affidavits based upon personal knowledge, does not defeat the motion for summary judgment (see, Gaeta v New York News, 62 NY2d 340, 350; Zuekerman v City of New York, 49 NY2d 557).

Section 3212(a) requires joinder of issue before a party may move for summary judgment.

Equitable Life Assurance Society of United States v. Rocanova · filed 1990-06-19(a)

To the extent that defendant sought summary judgment, the IAS court correctly denied the motion because it was made prior to joinder of issue (CPLR 3212 [a]).

A summary judgment motion made before issue is joined is ordinarily premature, but the court may entertain it when the opposing party has notice and deliberately addresses it as a summary judgment motion.

Hickey v. Travelers Insurance · filed 1990-06-25(a)

It must be noted, preliminarily, that Dr. Hutton’s application was premised on the provisions of both CPLR 3211 (a) (7) and CPLR 3212 and that, to the extent that relief was being sought pursuant to the latter statute, the motion was technically premature, since issue had not yet been joined (see, CPLR 3212 [a]).

Section 3212(a) makes a summary judgment motion premature before issue is joined.

Freer v. Poncic · filed 1991-04-11(a)

Inasmuch as issue had not yet been joined, summary judgment was premature (CPLR 3212 [a]), and the earlier order expressly authorized plaintiffs to move again for summary judgment at a later date.

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

Harris v. Kasperak · filed 1991-04-26(b)

Defendant demonstrated his entitlement to judgment in his favor as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562) by the submission of evidentiary proof in admissible form that his dog did not possess vicious propensities.

Section 3212(a) permits a summary judgment motion only after issue is joined.

John & Mary Markle Foundation v. Manufacturers Hanover Trust Co. · filed 1991-05-31(a)

A motion for summary judgment cannot be made until after issue is joined (CPLR 3212 [a]). Thus, the plaintiffs motion for summary judgment was premature.

A summary judgment motion made on the eve of trial is not denied for its timing alone when the motion or an award to the nonmoving party appears to have merit.

Inavest Enterprises v. TRW Title Insurance of New York, Inc. · filed 1991-06-19(a)

The fact that a motion for summary judgment is made on the eve of trial is not a ground for denial where, as here, there appears to be merit for it or for the award of summary judgment to the nonmoving party.

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

Columbus National Leasing Corp. v. Perkin-Elmer Corp. · filed 1991-11-15(b)

Defendant, by the tender of evidentiary proof in admissible form, established its defense, ... "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]).

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

Fusco v. Assessor of the City of Utica · filed 1991-12-26(b)

Here, petitioners failed to tender evidence in admissible form "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; see also, RPTL 720 [2]; Zuckerman v City of New York, 49 NY2d 557, 562).

A motion made under CPLR 3212 is properly treated as a summary judgment motion when issue has been joined and the parties submit affidavits on that understanding.

Koncelik v. Abady · filed 1992-01-30

Although in his brief on appeal defendant now claims that his cross motion was based on CPLR 3211 (a) (7), his motion papers quite clearly specify that it was made pursuant to CPLR 3212. Supreme Court decided it as such which was entirely appropriate considering that issue was joined and the parties submitted affidavits indicating that they considered the matter a summary judgment motion.

Section 3212(b) does not permit summary judgment on a counterclaim when neither party sought that relief or presented proof on it.

Porter v. Marx · filed 1992-01-30(b)

Defendants’ remaining argument that Supreme Court improperly dismissed their counterclaim for damages has merit for neither party moved for summary relief on this aspect of ... the counterclaim, nor mustered their proof with respect thereto (see, CPLR 3212 [b]; Siegel, NY Prac § 282, at 411-412 [2d ed]; cf., Ressis v Mactye, 98 AD2d 836, 837, lv dismissed 67 NY2d 601).

Section 3212(b) requires supporting papers sufficient to warrant summary judgment as a matter of law.

Marsh v. Wolfson · filed 1992-09-14(b)

Thus, the papers submitted in support of the motion were insufficient to warrant the court, as a matter of law, in directing judgment in favor of the defendants (CPLR 3212 [b]).

Section 3212 allows a court to treat a motion labeled under CPLR 3211 as a summary judgment motion when the parties and trial court have treated it that way.

Brecka v. Dolan · filed 1993-03-11

Although this motion was originally denominated as a motion to dismiss pursuant to CPLR 3211 (a) (5), and as such was interposed well beyond the time limit for such motions (see, CPLR 3211 [e]), no objection has been raised on this ground; because both parties and the court appear to have treated it as a summary judgment motion pursuant to CPLR 3212, we will do the same.

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

Bua v. South Shore Skating, Inc. · filed 1993-05-24(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 (CPLR 3212, subd Ob]), and [it] must do so by tender of evidentiary proof in admissible form’ ” (Zuckerman v City of New York, 49 NY2d 557, 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

Under CPLR 3212, an insurer’s conclusory underwriter statement does not establish entitlement to summary judgment on whether an undisclosed prior loss was material.

Alaz Sportswear v. Public Service Mutual Insurance · filed 1993-07-13

The proof submitted by defendant on its motion for summary judgment consisted solely of the conclusory statement of its underwriter. While the underwriter’s statement is evidence which is relevant to the issue of whether plaintiffs’ prior loss at the storage facility was material to the underwriting of the risk in question, it does not prove the materiality of that fact and thereby defendant’s entitlement to summary judgment as a matter of law.

Section 3212(a) permits a summary judgment motion after issue has been joined, including on the eve of or during trial in an appropriate case.

676 R.S.D. Inc. v. Scandia Realty · filed 1993-07-15(a)

Moreover, although the making of a summary judgment motion on the eve of or during trial has a tendency to frustrate the primary purpose of such remedy (see, Jordan v Levy, 16 AD2d 64, 65), it is not precluded in an appropriate case by CPLR 3212 (a), which merely requires that such motion be made after issue has been joined.

Section 3212 permits a summary judgment motion to seek relief on legal grounds cognizable under CPLR 3211(a).

First National Bank v. J. & J. Milano, Inc. · filed 1993-07-19

In First Natl. Bank v J. & J. Milano (supra), this Court did not direct a trial on the counterclaims, and thus the plaintiff was not precluded from making a motion for summary judgment, which may, as a matter of course, include a prayer for relief based on legal grounds cognizable under CPLR 3211 (a) (see, CPLR 3212; Siegel, NY Prac § 283 [2d ed]).

Section 3212(b) requires a summary judgment movant to prove the claim with admissible evidence; the opposing party must then show a factual question requiring trial.

First Deposit National Bank v. Moreno · filed 1993-11-05(b)

A plaintiff must prove his or her claim by evidentiary proof in admissible form, and, if such proof is forthcoming, in order to defeat a summary judgment motion a defendant generally must produce his or her proof in such form to demonstrate that there is a question(s) of fact that requires a trial.

A cross motion for summary judgment made before issue is joined is premature under CPLR 3212(a).

TST/Impreso, Inc. v. Cosmos Forms, Ltd. · filed 1994-03-14(a)

While the plaintiff’s cross motion was technically premature (see, CPLR 3212 [a]; Hickey v Travelers Ins. Co., 158 AD2d 112, 114), CPLR 3211 (c) permits a motion pursuant to CPLR 3211 to be treated as one for summary judgment where "adequate notice” has been given to the parties.

Under CPLR 3212, competent evidence can establish entitlement to summary judgment, while unsubstantiated allegations are insufficient to defeat it.

Wing Shun Tsang v. Brady · filed 1994-07-11

We agree with the Supreme Court that the plaintiff established his entitlement to judgment as a matter of law (see, CPLR 3212; Berholtz v Georgiou, 184 AD2d 677). The plaintiff demonstrated by competent evidence that he signed a contract conditioned upon his obtaining a mortgage and, through no willful default, his application was denied. The defendants’ unsubstantiated allegations that the plaintiff attempted to sabotage the granting of a mortgage commitment were insufficient to defeat the motion for summary judgment (see, Ihmels v Kahn, 126 AD2d 701).

Section 3212(b) permits a court to award summary judgment to the opposing party even without a cross motion.

Miller v. Town of Gorham · filed 1994-12-05(b)

... notwithstanding the absence of a cross motion, that summary judgment be awarded to the defendants pursuant to CPLR 3212 (b) and the action is hereby dismissed.

Section 3212(b) requires a summary judgment movant to present admissible evidence; testimony based on unidentified, unsubmitted records rather than personal knowledge is insufficient.

Hernandez v. New York City Transit Authority · filed 1994-12-13(b)

Contrary to the IAS Court’s assessment, the evidence given by the Transit Authority employees, based upon unsubmitted, unidentified Transit Authority records rather than personal knowledge, was legally insufficient (CPLR 3212 [b]; see also, Republic Natl. Bank v Luis Winston, Inc., 107 AD2d 581, 582; Mack v Gregory Mem. Hosp., 90 AD2d 969) and tended to skirt the issues.

Section 3212(b) requires a summary judgment motion to be supported by an affidavit from someone knowledgeable about the facts.

Aufiero v. Tramontano · filed 1995-02-09(b)

A motion for summary judgment must be supported by affidavit by one knowledgeable of the facts, showing there is no defense to the motion (CPLR 3212 [b]).

Section 3212(b) allows deposition testimony and an affidavit from a person with personal knowledge to serve as admissible proof on a summary judgment motion.

Desola v. Mads, Inc. · filed 1995-03-13(b)

Such documentation, in the form of deposition testimony and an affid? /it of one with personal knowledge of the facts, is evidentiary proof in admissible form (see, CPLR 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092, 1093; Scanlon v Long Beach Publ. Schools, 197 AD2d 567, supra).

Section 3212(b) requires admissible proof supporting summary judgment, and the opposing party must raise a triable issue of fact.

Williams v. Sharp Electronics Corp. · filed 1995-06-09(b)

Sharp tendered evidentiary proof in admissible form sufficient to establish that the fire in plaintiffs apartment was not caused by the malfunctioning of a Sharp microwave oven (see, CPLR 3212 [b]). The contrary conclusion contained in the affidavit of plaintiffs purported expert is insufficient to raise a triable issue of fact.

CPLR 3212(a) does not permit summary judgment before issue is joined.

Farca v. Farca · filed 1995-06-26(a)

In the instant case, treating the plaintiffs’ application pursuant to CPLR 3213 as an application pursuant to CPLR 3212 did violence to the statute ... and permitted the plaintiffs to seek summary judgment prematurely, before issue was joined (see, CPLR 3212 [a]; Elias v Serota, 103 AD2d 410, 417).

Section 3212(a) makes summary judgment premature before the defendant has answered.

Wain v. Caton · filed 1996-02-22(a)

Although we are unable to conclude that Supreme Court abused its discretion in declining to transfer this action to Surrogate’s Court, Supreme Court’s decision to award summary judgment to plaintiff against Sylvester was premature inasmuch as Sylvester had not interposed an answer (see, CPLR 3212 [a]).

A managing partner’s affidavit establishing nonpayment of a loan can support summary judgment under CPLR 3212.

Federal Financial v. Lauria · filed 1996-02-05

Contrary to the defendant’s contention, the plaintiffs motion for summary judgment was properly granted (see, CPLR 3212; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255). The affidavit of the plaintiffs managing partner was sufficient to establish that the defendant did not repay the subject loan.

CPLR 3212(b) permits summary judgment when competent evidence establishes entitlement to judgment as a matter of law and the opposing party fails to show a triable issue with admissible proof.

Christian v. Audi of America, Inc. · filed 1996-11-04(b)

Contrary to the appellant’s contention, the submission of police accident reports, eyewitness depositions, and the statement to the police of Angela Christian, the driver of the vehicle in which the infant plaintiff was riding, constituted competent evidence sufficient to entitle the respondents to judgment as a matter of law (see, CPLR 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Gaeta v New York News, 62 NY2d 340). The appellants have failed to meet their burden of demonstrating by admissible proof the existence of a triable issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires parties to support a summary judgment motion with admissible proof from people with knowledge of the facts; material factual disputes preclude judgment.

Perez v. Hempstead Motor Sales, Ltd. · filed 1997-06-23(b)

Both sides are required to support their positions by presenting admissible proof by persons having knowledge of the facts, including relevant documents. In reviewing the submissions, the function of the court is issue finding, rather than issue determination. ... The plaintiff has sufficiently met her burden of proof to defeat defendant Honda’s motion for summary judgment, by raising numerous serious and material issues of fact, which largely are uncontested by any affidavits by persons with personal knowledge on behalf of defendant Honda. Accordingly, the motion is denied.

CPLR 3212(b) requires a summary judgment motion to be supported by an affidavit, but an objection to the form of the supporting submission is waived if first raised on appeal.

Sam v. Town of Rotterdam · filed 1998-03-12(b)

Notwithstanding the existence of some caselaw tending to equate an affirmation with an affidavit (see, People v Sullivan, 56 NY2d 378, 383-384; Matter of Kurt EE., 199 AD2d 945), the inescapable fact is that CPLR 3212 (b) very specifically requires a summary judgment motion to “be supported by affidavit”. ... Nonetheless, defendant urges that because plaintiffs raised no objection to the technical form of its submission before Supreme Court, choosing instead to attack the sufficiency of the allegations contained therein, the deficiency has been waived. We agree.

After issue has been joined, CPLR 3212(a) calls for a summary judgment motion rather than a motion to dismiss.

Bennett Road Sewer Co. v. Town Board of Town of Camillus · filed 1998-04-29(a)

Because issue had been joined, defendants should have moved for summary judgment rather than moving to dismiss plaintiffs action (see, CPLR 3212 [a]).

A summary judgment motion under section 3212(a) is premature before issue is joined.

Non-Linear Trading Co. v. Braddis Associates, Inc. · filed 1998-06-02(a)

While a summary judgment motion is premature prior to joinder of issue (CPLR 3212 [a]), the affidavit of Ron Brandes, defendant’s principal, makes it clear that the motion is directed at the sufficiency of the complaint.

Section 3212(a) permits courts to shorten the 120-day period for summary judgment motions, provided the deadline is at least 30 days after the note of issue is filed.

Rossi v. Arnot Ogden Medical Center · filed 1998-07-16(a)

CPLR 3212 (a) specifically permits courts to shorten the 120-day period provided that it is no earlier than 30 days after the filing of the note of issue.

Section 3212 requires a summary judgment motion to be supported by an affidavit from a person with knowledge of the facts.

M. S. v. K. T. · filed 1998-07-23

CPLR 3212 requires that a motion for summary judgment must be supported by an affidavit and that affidavit shall be by a person having knowledge of the facts.

Section 3212(b) permits a movant to use its own deposition testimony to support a summary judgment motion.

Sipos v. Bridgeville Realty Corp. · filed 1998-08-10(b)

This apparently clear language is troubling in light of the broad language of CPLR 3212 (b) which allows a motion for summary judgment to be supported “by other available proof, such as depositions and written admissions”. ... Accordingly, and with great deference to the Metz rationale and decision, this court finds that deposition testimony and an affidavit may be used affirmatively by a movant on its own motion for summary judgment.

A motion for summary judgment is premature before issue has been joined.

A.D. Bedell Co. v. New York State Department of Taxation & Finance · filed 1998-11-13(a)

Issue had not been joined, and thus the motion was premature (see, CPLR 3212 [a]; Matter of Rine v Higgins, 244 AD2d 963, 964).

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

Unotti v. American Broadcasting Companies, Inc. · filed 1999-04-20(a)

As to that branch of the motion seeking summary judgment pursuant to CPLR 3212, it is denied as moot in light of the CPLR 3211 dismissal. In addition, it is premature, inasmuch ... as issue has not been joined (see, CPLR 3212 [a]; Matter of Rine v Higgins, 244 AD2d 963 [4th Dept 1997]; Leff v Leff, 182 AD2d 401 [1st Dept 1992]; City of Rochester v Chiarella, 65 NY2d 92 [1985]).

Section 3212(b) requires a summary judgment motion to be supported by sworn factual allegations based on personal knowledge.

Ron v. New York City Housing Authority · filed 1999-06-10(b)

the documentation that was submitted in support of the motion did not contain sworn allegations of fact based on personal knowledge and was therefore insufficient to warrant the relief requested (CPLR 3212 [b]).

Section 3212(b) does not permit an unsworn expert opinion to support a summary judgment motion.

Seaboard Surety Co. v. Earthline Corp. · filed 1999-06-29(b)

The unsworn opinion of plaintiffs handwriting expert was insufficient to support plaintiffs motion because it failed to comport with the provisions of CPLR 3212 (b).

Section 3212(a) makes a motion for summary judgment premature before issue has been joined.

Jann v. Cassidy · filed 1999-10-01(a)

The order to show cause was served, however, before issue had been joined (see, CPLR 3212 [a]; Matter of Rine v Higgins, supra, at 964). Indeed, the order to show cause preceded service of the complaint, at which time a motion for summary judgment would have been premature (see, Woodworth v Woodworth, 135 AD2d 1143).

CPLR 3212(b) requires a summary judgment movant to submit proof from a person with knowledge of the facts; skeletal and conclusory papers are insufficient.

Sheehan v. Lull Eng. Co. · filed 2000-04-24(b)

The appellant’s motion for summary judgment failed to comport with the requirements of CPLR 3212 (b) in that no . proof from a person having knowledge of the facts was presented and the appellant’s documentary evidence and moving papers were skeletal and conclusory.

CPLR 3212(b) requires admissible evidence establishing entitlement to judgment as a matter of law to obtain summary judgment.

Lombardi v. Allcity Insurance · filed 2000-07-10(b)

The plaintiff presented evidence in admissible form which established her entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(a) bars a summary judgment motion before joinder of issue.

288 St. Nick L. L. C. v. 288 Kiseki Realty, Inc. · filed 2000-08-09(a)

Plaintiffs cross motion for summary judgment is denied as premature, having been made prior to joinder of issue.

Section 3212(a) does not permit a party whose answer has been struck to move for summary judgment because it has no pleading before the court.

Legrand v. D.U. Second Realty Co. · filed 2000-11-28(a)

Because the conditional order striking the third-party defendant’s answer became self-executing upon failure to comply with its terms ... the third-party defendant had no pleading before the court. Accordingly, its motion for summary judgment was untimely and properly denied ... CPLR 3212 [a]).

Section 3212(b) permits a party to establish entitlement to summary judgment through an attorney’s affirmation supported by pleadings and documentary evidence.

Carniol v. Carniol · filed 2001-11-26(b)

Having nevertheless done so, the court erred in denying the motion, as the defendant established her entitlement to judgment as a matter of law upon the tender of an affirmation of her attorney and pleadings and other documentary evidence from the divorce action (see, Oían v Farrell Lines, 64 NY2d 1092; Finnegan v Staten Is. Rapid Tr. Operating Auth., 251 AD2d 539; Fowler v New York City Tr. Auth., 245 AD2d 416).

A party seeking summary judgment must provide evidence establishing its right to judgment.

477 Equities Corp. v. Bosha's Broome Street Holding, Inc. · filed 2002-03-21(b)

Defendant’s claim that plaintiffs consented to the proposed alterations was properly rejected for lack of evidentiary support.

Section 3212 requires issue to be joined before a party may obtain summary judgment.

Hsiu v. Trujillo · filed 2002-06-12

To the extent that the cross motion seeks summary judgment in favor of the plaintiffs, it is premature, as issue has not been joined.

Section 3212(b) permits summary judgment for a nonmoving party without a cross motion when the record establishes entitlement as a matter of law.

Dwyer v. Burlington Broadcasters, Inc. · filed 2002-06-13(b)

Accordingly, in the absence of a subsequent writing expressly modifying the stated policy, the record demonstrates as a matter of law that plaintiff is not entitled to the posttermination commissions she seeks in this action. Therefore, summary judgment dismissing the complaint is appropriate, despite the absence of a cross motion by defendant (see, CPLR 3212 [b]).

Under section 3212(b), a movant’s allegations based on information and belief are insufficient to support summary judgment.

In re Kerri H. · filed 2002-10-01(b)

While there is no affidavit from the petitioner raising a triable question of fact, there is likewise no affidavit from the movant. While not so stated, it is clear that the Law Guardian’s allegations regarding the respondent’s status are upon information and belief and thus are insufficient.

Section 3212 does not support dismissal of an action on appeal when the party made no summary judgment motion and the trial court gave no notice that it would consider summary judgment.

Allen v. Strough · filed 2002-10-15

The Supreme Court did not, as in Poster, inform the parties of its intent to consider any motion for summary judgment with respect to the “action” portion of the hybrid proceeding-action. The Board, after serving its answer, never made any motion for summary judgment (see CPLR 3212) and never made any motion to dismiss pursuant to CPLR 7804 (f). For these procedural reasons, the Board is not entitled to a dismissal of the “action” portion of the hybrid proceeding-action on this appeal.

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

Pitts v. City of Buffalo · filed 2002-10-31(a)

The court properly denied plaintiff’s request for “accelerated judgment.” CPLR 3212 (a) provides that a “party may move for summary judgment in any action, after issue has been joined.”

Section 3212(b) permits a party’s affidavit to support a summary judgment motion even if that party did not testify at a deposition.

Ostrovsky v. City of New York · filed 2002-12-19(b)

Notwithstanding the plaintiff’s argument that the Caputos’ motion must be denied for failure to give EBT testimony, the affidavit of a party is properly considered in support of a summary judgment motion.

Conversion of a motion for summary judgment in lieu of complaint to a CPLR 3212 summary judgment motion may be inappropriate in the circumstances of the case.

Gottlieb v. Blue Ridge Insurance · filed 2002-12-23

On the facts and circumstances presented, conversion of this motion to one for summary judgment pursuant to CPLR 3212 was not appropriate (compare Big K Kosher Dairy Rest. v Gross, 198 AD2d 205; see also Schulz v Barrows, 94 NY2d 624; Weissman v Sinorm Deli, 88 NY2d 437).

Under CPLR 3212(f), summary judgment is premature while discovery remains outstanding.

Destin v. New York City Transit Authority · filed 2003-03-31(f)

The Supreme Court properly denied the motion of the defendant New York City Transit Authority for summary judgment. Discovery is still outstanding. Thus, it would be premature to grant summary judgment at this stage of the proceedings (see CPLR 3212 [f|; Rajan v Insler, 300 AD2d 463 [2002]; AIT Intl, v Federal Express Corp., 278 AD2d 439, 440 [2000]).