N.Y. C.P.L.R. § 3212

CPLR 3212(b) permits denial of a summary judgment cross motion when its papers do not comply with the section’s requirements.

Gonnerman v. Huddleston · filed 2008-02-13(b)

The Supreme Court properly denied the cross motion of the defendant Lighting Maintenance, Inc. (hereinafter LMI) for summary judgment, as its papers did not comply with the requirements of CPLR 3212 (b) (see Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965 [2007]; Matsyuk v Konkalipos, 35 AD3d 675 [2006]; Wider v Heller, 24 AD3d 433 [2005]; Hamilton v City of New York, 262 AD2d 283 [1999]).

CPLR 3212 (b) requires a summary judgment movant to submit copies of all pleadings filed in the action.

Fishkin v. Feinstein · filed 2009-11-24(b)

The Supreme Court properly denied Feinstein’s motion for summary judgment. As an initial matter, the plaintiff correctly contends that Feinstein was not entitled to summary judgment since the papers she submitted in support of her motion failed to include copies of all of the pleadings filed in the action, as required by CPLR 3212 (b) (see Wider v Heller, 24 AD3d 433 [2005]; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663 [2004] ; Deer Park Assoc. v Robbins Store, 243 AD2d 443 [1997]; Lawlor v County of Nassau, 166 AD2d 692 [1990]).

A summary judgment movant must provide copies of all relevant pleadings with the motion.

Edgett v. North Fork Bank · filed 2010-04-30(b)

Supreme Court properly denied the motion, regardless of its merits, inasmuch as North way failed to provide in support of its motion a copy of all of the third-party pleadings (see CPLR 3212 [b]; D.J. Enters. of WNY v Benderson, 294 AD2d 825 [2002]).

Section 3212 requires a court to assess the sufficiency of the moving papers even when the opposing party does not challenge them.

Wulbrecht v. Jehle · filed 2010-06-14

Thus, the court must evaluate on its own the sufficiency of the papers submitted in support of a motion for summary judgment even in the absence of an argument to that effect by the nonmoving party.

CPLR 3212(b) requires a summary judgment movant to include a complete set of the pleadings.

Liberty Doorworks, Inc. v. Baranello · filed 2011-04-26(b)

The appellant failed to include a complete set of the pleadings in support of its motion for summary judgment as required by CPLR 3212 (b) (see Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965 [2007]; Matsyuk v Konkalipos, 35 AD3d 675 [2006]; Wider v Heller, 24 AD3d 433, 434 [2005]; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663 [2004]).

Under CPLR 3212, courts may direct supplemental affirmations sparingly to clarify limited issues, but should not routinely use them to cure deficiencies in summary judgment papers.

Ostrov v. Rozbruch · filed 2012-01-03

Supplemental affirmations however, should be sparingly used to clarify limited issues, and should not be utilized as a matter of course to correct deficiencies in a party’s moving or answering papers.

CPLR 3212(b) requires a party seeking summary judgment on a claim to include the relevant pleading with its motion papers; omission can warrant denial without prejudice to renewal.

Mouta v. Essex Market Development LLC · filed 2013-02-19(b)

Essex failed to include a copy of the third-party complaint in its motion for summary judgment on its indemnification claims against Marangos (see CPLR 3212 [b]). We therefore affirm the denial of Essex’s motion, without prejudice to renewal upon proper papers (see Krasner v Transcontinental Equities, 64 AD2d 551 [1st Dept 1978]).

CPLR 3212(b) requires a party seeking summary judgment on third-party claims to include the third-party complaint in its motion papers.

Mouta v. Essex Market Development LLC · filed 2013-05-16(b)

Essex failed to include a copy of the third-party complaint in its motion for summary judgment on its indemnification claims against Marangos and JF (see CPLR 3212 [b]). We therefore affirm the denial of Essex’s motion, without prejudice to renewal upon proper papers (see Krasner v Transcontinental Equities, 64 AD2d 551 [1st Dept 1978]).

CPLR 3212(b) requires the motion papers to include the pleadings, but an appellate court may excuse their omission when the record contains a complete copy.

In Re the Estate of Warren · filed 2016-10-20(b)

Surrogate's Court did not address respondent's arguments regarding standing, apparently because it denied his motion for summary judgment due to the absence of a copy of the pleadings in the motion papers (see SCPA 102; CPLR 3212 [b]). Inasmuch as the record before us contains a complete copy of the pleadings, including an answer that was subsequently verified by respondent, we will excuse that failure in the interest of judicial economy and address the argument on its merits (see Sanacore v Sanacore, 74 AD3d 1468, 1469 [2010]).

Section 3212(b) requires a party opposing summary judgment to tender admissible evidence showing facts sufficient to require a trial.

Coniglio v. Leisure Rinks Southtown, Inc. · filed 1994-07-15(b)

Plaintiffs failed to tender evidence in admissible form to show "facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]).

A plaintiff must present facts sufficient to withstand a motion for summary judgment.

Kosson v. Algaze · filed 1994-04-14

The IAS Court properly determined that the plaintiff had failed to allege facts sufficient to withstand a motion for summary judgment with respect to his causes of action for injunctive relief prohibiting the termination of his employment by defendant St. Luke’s/Roosevelt Hospital and seeking damages for breach of contract, intentional interference with contractual relations and defamation (Zuckerman v City of New York, 49 NY2d 557, 562).

CPLR 3212 permits summary judgment when a foreclosure plaintiff establishes entitlement to judgment as a matter of law and the defendant fails to show a factual issue requiring trial or an acceptable excuse.

Great Western Bank v. Terio · filed 1994-01-18

By contrast, the appellant failed to meet his burden of demonstrating the existence of a factual issue requiring a trial or an acceptable excuse for his failure to do so. Accordingly, the court properly granted summary judgment to the plaintiff (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562; Gateway State Bank v ShangriLa Private Club for Women, supra).

Under CPLR 3212(b), a party opposing summary judgment must show facts sufficient to require a trial of a factual issue.

Nitecki v. National Fuel Gas Distribution Corp. · filed 1993-05-28(b)

The affidavit of that physician did not contradict the medical evidence proffered by defendant and, thus, plaintiff failed to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires a party to present all proof supporting a factual issue on a summary judgment motion.

Coon v. Brown · filed 1993-04-22(b)

On a summary judgment motion, a party is required to lay bare all proof that facilitates a finding of an issue of fact (CPLR 3212 [b]).

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

Puchalski v. Wedemeyer · filed 1992-07-23(b)

Here, because we do not find that proof submitted by plaintiffs in opposition to defendants’ motion was sufficient to meet their burden of raising triable issues of fact (see, CPLR 3212 [b]), summary judgment in defendants’ favor is appropriate.

Under CPLR 3212(b), opposition to a supported summary judgment motion must offer evidence sufficient to defeat the movant’s showing.

Rivera v. Pula · filed 1991-05-09(b)

Plaintiff’s papers in opposition were insufficient to defeat defendant’s evidence to the effect that plaintiff had failed to establish a "serious injury” as a matter of law (see, CPLR 3212 [b]).

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

Porter v. New York City Housing Authority · filed 1991-02-08

On the record before this court, the defendant’s submissions in support of its motion for summary judgment satisfy the prima facie showing required to warrant judgment as a matter of law if not rebutted by the plaintiff. ... The plaintiff has failed to come forth with any evidence in admissible form which would support his theory of liability and justify the denial of the Housing Authority’s motion for summary judgment.

Under CPLR 3212(b), once a movant establishes its entitlement to judgment as a matter of law, the opponent must produce admissible evidence of a material factual issue requiring trial.

Fehringer v. Thomas Crimmins Contracting Corp. · filed 1990-11-16(b)

Since plaintiff established its cause of action "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]), defendant "was required to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact” (Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425; Zuckerman v City of New York, 49 NY2d 557).

An affidavit opposing summary judgment can raise unresolved factual issues that prevent dismissal of a claim.

Geller v. Esikoff · filed 1990-09-24

Although the plaintiffs failed to set forth in the complaint all of the elements required to establish a cause of action to recover damages for economic duress, their affidavit in opposition to the motion to dismiss the complaint for failure to state a cause of action and for summary judgment raised unresolved issues of fact with respect to the purported economic duress (see, CPLR 3212).

A party cannot avoid summary judgment by relying on conclusory assertions without proof of an alleged agreement.

Balzano v. Lublin · filed 1990-06-19

Plaintiff could not, however, provide any proof of this agreement or of the repairs he allegedly made, offering merely his own conclusory assertions. ... Plaintiff cannot avoid summary judgment by relying on the alleged oral agreement to abate rent while repairs were effected.

To defeat a mortgage lender’s motion for summary judgment, the opposing party must demonstrate a bona fide defense to the mortgage.

Northeast Savings v. Rodriguez · filed 1990-03-22

To successfully withstand plaintiff’s motion, defendant was obliged to demonstrate a bona fide defense to the mortgage. This has not been done.

To defeat summary judgment, the opposing party must produce admissible proof showing that material factual questions require a trial.

Giannelli v. St. Vincent's Hospital & Medical Center · filed 1990-04-05

In order to defeat the motion for summary judgment, plaintiff was required to produce admissible proof that would require a trial of the material questions of fact upon which his claim rests.

Under CPLR 3212, once a movant supports a summary judgment motion with sufficient evidence, the opposing party must show a triable factual issue with admissible evidence or give an acceptable excuse for failing to do so.

Burns v. City of New York · filed 1989-12-19

Once Penn Central submitted documents which satisfied its burden of proof, it was incumbent upon plaintiff to " 'demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for [her] failure so to do’ ”.

A party cannot defeat a summary judgment motion with bare allegations or conjecture.

Naylor v. Ceag Electric Corp. · filed 1990-02-01(b)

Additionally, plaintiff failed to offer anything more than bare allegations that he was owed commissions pursuant to the 1983 agreement and motions for summary judgment cannot be defeated by mere conjecture (CPLR 3212 [b]; Shaw v Time-Life Records, 38 NY2d 201, 207).

CPLR 3212 permits summary judgment when the moving party establishes entitlement as a matter of law and the opposing party fails to present evidence of a material factual issue requiring trial.

Suzuki Musical Instrument Corp. v. CCA Distributors, Inc. · filed 1989-12-12

Plaintiff’s moving papers, which included various commercial documents concerning the sale of the musical instruments, demonstrated entitlement to summary judgment in its favor as a matter of law. Defendant, on the contrary, failed to present sufficient evidentiary proof to require a trial of any material issue of fact.

Under CPLR 3212(b), affidavits establishing an affirmative defense can entitle a defendant to summary judgment when the opposing papers lack the necessary evidentiary showing.

Pryhuber v. Maffucci Storage Corp. · filed 1991-02-25(b)

The supporting affidavits of the defendant’s operations manager and its attorney sufficiently established its affirmative defense so as to entitle it to judgment in its favor as a matter of law (see, CPLR 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092; Zuckerman v City of New York, 49 NY2d 557, 563).

On a summary judgment motion, once defendants submit evidence supporting their defense, the plaintiff must make an evidentiary showing in response.

Marshall v. Tanoury · filed 1993-02-22

In view of the evidence submitted by defendants it became incumbent upon the plaintiff to make at least an evidentiary showing that even though she possessed the learner’s permit for some two years she was unaware of the dangerous condition as well as the resultant risk of being a passenger in an automobile driven by an inexperienced child. This she fails to do.

A summary judgment movant must establish its claim or defense with admissible evidence sufficient to warrant judgment as a matter of law.

National Union Fire Insurance v. Proskauer Rose Goetz & Mendelsohn · filed 1994-08-02(b)

The movant on a motion for summary judgment 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]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

Section 3212 shifts the burden to the party opposing summary judgment once the movant shows entitlement to judgment as a matter of law; the opponent need only raise significant doubt about a material factual issue.

Smith v. Accuride Corp. · filed 1995-05-01

When this showing has been met, the burden shifts, and the party opposing judgment need only raise significant doubt regarding the existence of a material factual issue.

Section 3212(b) requires evidence sufficient to raise a triable issue of fact; unsupported, conclusory assertions do not suffice.

Wolfson v. Nevele Hotel, Inc. · filed 1995-12-14(b)

The conclusory assertions to the contrary made by Sciarrino in her statements were unsupported by expert proof and were insufficient to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Rajkov v. Eli Lilly & Co. · filed 1995-12-18(b)

Contrary to the plaintiffs’ contentions, the record fails to raise any triable issues of fact (see, CPLR 3212 [b]) that the plaintiff Milena Rajkov sustained a serious injury as defined by Insurance Law § 5102 (d).

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

Prudential Home Mortgage Co. v. Tay · filed 1995-12-29(b)

The defendant has failed to raise a triable issue of fact as to whether he defaulted on the note or whether the plaintiff properly exercised its option to accelerate payment on the note (see, CPLR 3212 [b]).

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

Purcell v. McDaniel Ford, Inc. · filed 1996-02-20

There are no triable issues of fact as to whether the appellant made misrepresentations and breached the warranty it issued to the plaintiff (see, CPLR 3212).

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

DeMarchi v. Martinez · filed 1996-02-26(b)

We further conclude that the evidence submitted by the defendants raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff’s inability to perform his usual job duties for "not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury” (Insurance Law § 5102 [d]) resulted entirely from ... an earlier on-the-job accident which occurred on November 5, 1992.

CPLR 3212 permits summary judgment when the undisputed facts leave no issue requiring a trial.

Govan v. Motor Insurance · filed 1996-03-11

Thus, there exist no issues of fact which would necessitate a trial. Summary judgment in favor of plaintiff was therefore proper.

CPLR 3212 permits summary judgment when the opposing party fails to present evidence sufficient to raise a triable issue of fact.

Lancaster v. New York City Housing Authority · filed 1996-04-04

In this personal injury action, in which plaintiff alleges that she slipped and fell on a puddle of water in the hallway outside her apartment, plaintiff has failed to come forward with evidentiary proof sufficient to raise triable issues of fact as to whether defendant Housing Authority had actual or constructive notice of a water puddle in the hallway, or created same.

Once a movant makes a prima facie case for summary judgment, the opposing party must show a triable factual issue to defeat the motion.

Yi v. JNJ Supply Corp. · filed 2000-07-17(b)

Where, as here, a movant has made out a prima facie case for summary judgment, the opposing party must show the existence of a triable factual issue to defeat the motion (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

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

Croche v. Wyckoff Park Associates · filed 2000-07-31(b)

Bassuk Bros., Inc., made a prima facie showing that the plaintiff was its special employee (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Thompson v Grumman Aerospace Corp., 78 NY2d 553; Gjelaj v Dwelling Mgrs., 251 AD2d 4; Levine v Lee’s Pontiac, 203 AD2d 259), and the plaintiffs failed to raise a triable issue of fact as to the special employee status (see, CPLR 3212 [b]; Zuckerman v City of New York, supra, at 562).

Under CPLR 3212(b), summary judgment is proper when the defendant makes a prima facie showing and the plaintiff fails to raise a triable issue on proximate cause.

Panico v. Key Food Stores Cooperative, Inc. · filed 2000-08-07(b)

The defendant made a prima facie showing that it was not negligent in the happening of the plaintiff’s accident and, in any event, that any action by it was not a proximate cause of the plaintiff’s injuries (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Even assuming that the plaintiff raised a triable issue of fact as to the defendant’s negligence in response to the defendant’s prima facie showing, he failed to raise a triable issue of fact as to whether the negligence was a proximate cause of his injuries.

Once a summary judgment movant makes a prima facie showing of entitlement to judgment, the opposing party must offer evidence sufficient to raise a triable issue of fact.

Packes v. Bally Total Fitness Corp. · filed 2000-12-04(b)

After the defendant made a prima facie showing of its entitlement to judgment as a matter of law, the plaintiff offered no evidentiary proof sufficient to raise a triable issue of fact (see, CPLR 3212 [b]) that any attempts at snow removal on the part of the defendant rendered the sidewalk more dangerous.

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

Flannery v. Marley · filed 2001-02-20(b)

Since the appellants admitted that the hotel owner satisfied the Nevada judgment, they failed to raise a triable issue of fact to defeat the New York Post’s prima facie showing that they had elected their remedy (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Blanco v J & B Assocs., supra).

Under CPLR 3212(b), a party that makes a prima facie showing of entitlement to summary judgment is entitled to judgment if the opposing party fails to raise a triable issue of fact.

Santorelli v. Apple & Eve, L.P. · filed 2001-04-30(b)

In opposition to the appellants’ prima facie showing of entitlement to summary judgment, the plaintiff failed to raise a triable issue of fact with regard to the above factors. Therefore, the appellants are entitled to summary judgment dismissing the complaint insofar as asserted against them (see, CPLR 3212 [b]; Tardella v RJR Nabisco, supra).

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

Kent v. City of New York · filed 2001-06-11(b)

The evidence submitted by the appellant, including photographs of the accident scene, established a prima facie case (see, CPLR 3212 [b]) that she did nothing to create or cause the alleged defective condition of the sidewalk, and that she made no special use thereof. The evidence submitted by the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212 [b]). Therefore, the appellant’s motion should have been granted.

Section 3212(b) requires a summary judgment movant to submit admissible evidence establishing entitlement to judgment and the opposing party to submit admissible evidence raising a material factual issue.

Forest City Enterprises, Inc. v. Russo · filed 2005-03-07(b)

It is well established that to obtain summary judgment under CPLR 3212 (b), the movant must make a “tender of evidentiary proof in admissible form” to “establish [a] cause of action . . . ‘sufficiently to warrant the court as a matter of law in directing judgment’ in [movant’s] favor” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). The party “opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Section 3212(b) requires admissible proof sufficient for judgment as a matter of law before the opposing party must raise a triable issue of fact.

People v. Tempur-Pedic International, Inc. · filed 2011-01-14(b)

Petitioner must tender evidentiary proof, in admissible form, sufficient to “warrant the court as a matter of law in directing judgment in [his] favor.” (CPLR 3212 [b].) Unsupported allegations or those with insufficient or inadmissible proof will not serve to establish a prima facie case. Only after the petitioner submits evidence establishing its claim does the burden shift to the respondent to come forward with evidence raising a triable issue of fact.

Section 3212(b) requires a party seeking summary judgment to submit admissible proof establishing its entitlement to judgment.

Saunders v. Newmark Construction · filed 2012-04-03(b)

The Newmark defendants “failed to tender proof in admissible form establishing the terms of the contract in effect at the time of [the plaintiffs] accident” (Guerra v St. Catherine of Sienna, 79 AD3d 808, 809 [2010]; see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; City of New York v Gowanus Indus. Park, Inc., 65 AD3d 1071, 1073 [2009]).

Section 3212(b) requires a summary judgment movant to establish the relevant facts with proof in admissible form.

Ulster County v. CSI, Inc. · filed 2012-05-31(b)

In any event, those writings are not acknowledged as required by CPLR 4538 and, thus, do not qualify as evidentiary proof in admissible form (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Section 3212(g) permits a court to establish an innocent driver’s lack of culpable conduct even when disputed facts prevent summary judgment against a defendant.

Oluwatayo v. Dulinayan · filed 2016-07-07(g)

Under the circumstances here, we find that plaintiff, an innocent driver, is not entitled to summary judgment on liability against any defendant driver because, as the party moving for summary judgment, plaintiff failed to meet his burden to eliminate triable issues of fact as to how the accident happened and which defendant driver was responsible for the rear end collision. Such an innocent plaintiff driver, however, is entitled to summary judgment on his lack of culpable conduct on the issue of liability pursuant to CPLR 3212 (g).

Section 3212(g) gives the court discretion to identify undisputed or incontrovertible facts when deciding a summary judgment motion.

R. M. Newell Co. v. Rice · filed 1990-02-02(g)

The court did not abuse its discretion in refusing to identify undisputed or incontrovertible facts (CPLR 3212 [g]).

CPLR 3212(g) permits a court to establish facts for trial when a party opposing the motion fails to submit evidence from someone with personal knowledge, and a later challenge must explain why that evidence was not submitted earlier.

O'Neil v. Peekskill Faculty Ass'n Local No. 2916 · filed 1989-12-13(g)

The record reveals that in opposition to the plaintiff’s cross motion made in 1985 pursuant to CPLR 3212 (g) to deem certain facts established for trial—among them the assertion that the plaintiff never made the alleged slur as recounted in the press release—the defendants "submitted no affidavits by persons with personal knowledge of the facts” (O’Neil v Peekskill Faculty Assn., supra, at 47; emphasis added). ... No reasonable explanation was provided as to why those allegations were not brought to the attention of the court in 1985. Moreover, we find unpersuasive the belatedly proffered excuse that counsel reasonably believed that an affidavit from someone with personal knowledge of the incident "was not legally required” in opposition to the plaintiffs cross motion (cf., Mgrditchian v Donato, 141 AD2d 513).

Section 3212(g) permits a court to establish facts when denying summary judgment; a later proposed complaint cannot contradict those findings.

Simpson v. Sutton East Associates 86 · filed 1997-11-25(g)

The motion was properly denied on the grounds that the proposed complaint contains factual allegations controverting the factual finding made by the IAS Court in a prior order denying plaintiff’s motion for summary judgment (see, CPLR 3212 [g]), affirmed on appeal (221 AD2d 279), that defendants’ mechanics’ liens had priority over plaintiffs’ mortgage, and that plaintiffs failed to satisfy their “heavy burden” of showing that the newly alleged facts, which were extant at the time of their original motion, could not have been known by them at any time before the perfection of the appeal on the prior order (Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994; Levitt v County of Suffolk, 166 AD2d 421, 422-423, lv dismissed 77 NY2d 834; cf., CPLR 5015 [a] [2]).

Section 3212(g) permits facts conceded in opposition to summary judgment to be deemed established for all purposes in the action.

Lambos v. Weintraub · filed 1998-12-16(g)

However, to the extent that the plaintiffs’ medical expert, in his affidavit in opposition to the appellant’s motion for summary judgment, conceded that the appellant “properly and timely diagnosed the [decedent’s] condition as being a seizure disorder, that appropriate diagnostic tests were performed to support that diagnosis, and that the appropriate and timely treatment was initially instituted”, it is ordered that such facts are deemed established for all purposes in the action (see, CPLR 3212 [g]).

A court may decline a request under CPLR 3212(g) to identify facts that are not in dispute or are uncontroverted.

Van Ostberg v. Crane · filed 2000-06-16(g)

Furthermore, we decline to grant their request for an order pursuant to CPLR 3212 (g) setting forth the facts that are not in dispute or are uncontroverted.

Under subsection (g), when a party establishes facts as a matter of law, the opposing party must raise a triable issue concerning those facts.

Bissell v. Town of Amherst · filed 2004-04-30(g)

Plaintiffs established certain facts as a matter of law pursuant to CPLR 3212 (g) and thus the burden- shifted to defendant to raise a triable issue concerning those facts (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Section 3212(g) permits a court to specify undisputed facts and deem them established for the rest of the action.

Mendez v. Bhattacharya · filed 2007-03-30(g)

CPLR 3212 (g) empowers this court to ascertain what facts are not in dispute or are incontrovertible, make an order specifying such facts and deem them established for all purposes in the action.

Section 3212(g) permits a court denying summary judgment to specify undisputed facts that will be deemed established throughout the action.

Vitality Chiropractic, P.C. v. New York Central Mutual Fire Insurance · filed 2007-08-20(g)

We note that in denying a motion for summary judgment, a court may, pursuant to CPLR 3212 (g), determine “what facts are not in dispute or are incontrovertible . . . [and] make an order specifying such facts [which] shall be deemed established for all purposes in the action.” However, the order herein identified no particular facts as established, merely a conclusion of law that plaintiff had set forth facts upon the motion sufficient to shift the burden to defendant for purposes of the motion.

Section 3212(g) allows a court to deem a fact established for all purposes in the action when deciding a summary judgment motion.

Iskalo Electric Tower LLC v. Stantec Consulting Services, Inc. · filed 2010-12-30(g)

Indeed, based on our examination of the answer and the affirmation of defendant’s corporate counsel submitted in opposition to the motion, we conclude that plaintiffs delivered the requisite written notice to defendant of their inability to deliver possession of the 5 East Huron Street premises, and thus we deem such notice established for all purposes in the action (see CPLR 3212 [g]).

Section 3212(g) does not allow facts to be deemed established for the action merely because a party previously made a prima facie showing for summary judgment.

A.B. Medical Services, PLLC v. Utica Mutual Insurance · filed 2011-07-08(g)

The order did not include a finding, either explicit or implicit, that such facts were incontrovertible, and thus that they could be deemed established for all purposes in the action pursuant to CPLR 3212 (g).

Section 3212(g) allows a court to establish undisputed facts after denying a summary judgment motion or granting it in part; a request based on a prior motion must identify and attach the relevant order and motion papers.

Smith v. Smith · filed 2013-08-08(g)

Plaintiff has not identified the order which denied or only granted in part her prior motion for summary judgment. ... Plaintiffs motion is procedurally defective and is therefore denied without prejudice to renew. On renewal, the plaintiff should identify and annex the order in question and the complete set of motion papers which yielded the subject order.

Section 3212(g) permits facts established on a summary judgment motion to be treated as established for all purposes in the action.

Promed Durable Equipment, Inc. v. GEICO Insurance · filed 2013-08-16(g)

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action.

CPLR 3212 (g) permits a court to find facts established for all purposes in an action and limit the issues remaining for trial.

New York Diagnostic Medical Care, P.C. v. GEICO General Insurance · filed 2013-10-08(g)

Thus, in the particular circumstances of this case, including the fact that the Civil Court did make a CPLR 3212 (g) finding as to the timely mailing of the denials and did limit the issues for trial, we find that it is appropriate to make a finding, pursuant to CPLR 3212 (g), that plaintiff established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained, and to therefore further limit the trial to the issue of medical necessity only.

Section 3212(g) permits a court to specify undisputed facts that will be treated as established throughout the action, even when summary judgment is denied.

Phillip v. D&D Carting Co., Inc. · filed 2015-12-09(g)

In circumstances such as these, the court may appropriately exercise the discretion granted by CPLR 3212 (g), which authorizes it to make an order specifying “what facts are not in dispute or are incontrovertible,” so that they may “be deemed established for all purposes in the action.”

CPLR 3212(g) does not permit a court to deem an issue established for trial unless the evidence establishes it as a matter of law.

Ultimate Health Prods., Inc. v. Allstate Ins. Co. · filed 2016-09-19(g)

Plaintiff correctly contends that defendant's cross-moving papers failed to establish, as a matter of law, that the letters requesting verification had been timely mailed ( see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 [2008]). Consequently, the Civil Court's finding that defendant had established the timely mailing of the verification requests is vacated.

Section 3212(g) permits a court to treat a fact established on a summary judgment motion as resolved for all purposes in the action.

Bob Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co. · filed 2016-09-27(g)

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff's cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms is granted.

A party seeking to strike findings made under CPLR 3212(g) must articulate a sufficient basis for doing so.

Kappa Med., P.C. v. Chubb Indem. Ins. Co. · filed 2017-09-15(g)

Furthermore, defendant fails to articulate a sufficient basis to strike the Civil Court's CPLR 3212 (g) findings in plaintiff's favor ( see EMC Health Prods., Inc. v Geico Ins. Co. , 43 Misc 3d 139 [A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2] 2014]).

Section 3212(g) allows a fact to be established for all purposes in an action only when it is incontrovertible.

Logic Chiropractic, P.C. v. Hereford Ins. Co. · filed 2017-12-15(g)

Construing that argument to be a challenge to the court's finding, in effect pursuant to CPLR 3212 (g), that defendant had timely and properly mailed such letters, we agree that the discrepancy between the assignor's address as listed on the claim forms and on the assignment of benefits form, and the address to which the IME scheduling letters were allegedly sent, demonstrates that it cannot be said that it is "incontrovertible" and "established for all purposes in the action" (CPLR 3212 [g]) that the IME scheduling letters were properly mailed.

Section 3212(g) permits a court to identify facts that are undisputed when deciding a summary judgment motion.

U.S. Energy Development Corp. v. Superior Well Services, Inc. · filed 2017-11-09(g)

Finally, we reject defendant’s contention that the court erred in granting in part the alternative relief sought by plaintiff in its cross motion (see CPLR 3212 [g]).

CPLR 3212(g) does not support a finding that a defense is established when the defendant has not demonstrated the facts needed to establish it.

AVM Chiropractic, P.C. v. American Tr. Ins. Co. · filed 2017-12-08(g)

However, as to the claims underlying the second, third, and sixth through tenth causes of action, plaintiff correctly argues that defendant did not demonstrate that it had appropriately reduced the claims in accordance with the workers' compensation Ground Rules ( see Sama Physical Therapy, P.C. v American Tr. Ins. Co. , 53 Misc 3d 129 [A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the second, third, and sixth through eighth causes of action are denied, and the findings, in effect pursuant to CPLR 3212 (g), on the ninth and tenth causes of action are vacated.

CPLR 3212(g) findings remain in place when a party fails to articulate a sufficient basis to strike them.

Charles Deng Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co. · filed 2017-12-22(g)

Defendant fails to articulate a sufficient basis to strike the Civil Court's CPLR 3212 (g) findings in plaintiff's favor ( see EMC Health Prods., Inc. v Geico Ins. Co. , 43 Misc 3d 139 [A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Section 3212(g) permits a court to identify facts established on a summary judgment motion and limit trial to the issues that remain.

Maiga Prods. Corp. v. State Farm Mut. Auto. Ins. Co. · filed 2018-05-18(g)

Plaintiff challenges the Civil Court's implicit CPLR 3212 (g) findings in favor of defendant. However, a review of the record establishes that the Civil Court correctly determined that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff's failure to appear for the EUOs.

A court may deny a CPLR 3212(g) cross motion to specify facts not in dispute when the movant files no supporting papers.

McKiernan v. Vaccaro · filed 2019-01-16(g)

In an order entered August 24, 2017, the Supreme Court granted Mancuso's motion for summary judgment dismissing the complaint insofar as asserted against him, and denied the plaintiff's cross motion for an order pursuant to CPLR 3212(g) due to the plaintiff's failure to file supporting papers with his cross motion. ... Further, we agree with the Supreme Court's determination to deny the plaintiff's cross motion pursuant to CPLR 3212(g) for an order specifying facts not in dispute.

CPLR 3212(g) permits findings that establish facts for the rest of an action only when those facts are incontrovertible.

Parisien v. Travelers Ins. Co. · filed 2019-11-22(g)

However, if the court had truly found that plaintiff had established, as "incontrovertible," all elements of its prima facie case for "all purposes in the action" (CPLR 3212 [g]), "the court would have granted summary judgment to plaintiff" ( EMC Health Prods., Inc. v Geico Ins. Co. , 43 Misc 3d 139 [A], 2014 NY Slip Op 50786[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). ... Accordingly, the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) findings in plaintiff's favor are vacated.

After denying a summary judgment motion or granting it in part, a court has discretion to identify undisputed facts for trial, and an appellate court may do so de novo when practicable.

Launt v. Lopasic · filed 2020-12-03(g)

Supreme Court had complete discretion to undertake such an inquiry, sua sponte, and we decline to disturb its decision not to invoke CPLR 3212 (g). Although this Court may issue a de novo CPLR 3212 (g) ruling, our independent review of the record leads us to the conclusion that such an inquiry would be impracticable, and we decline the invitation to do so.

Section 3212(g) does not establish facts for trial when the summary judgment order makes no finding that those facts are established.

Park Cent. 1 LLC v. Figueroa · filed 2021-03-26(g)

Contrary to landlord's contention, the order on appeal did not make an implicit or explicit finding, as a matter of law, that tenant "permanently vacated" the premises in October 2013 or indeed that there were any facts that had been established for all purposes in the action ( see CPLR 3212[g]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. , 34 Misc 3d 129[A], 2011 NY Slip Op 52300[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Section 3212(g) permits findings that facts are established for all purposes in an action, but such findings must be vacated when they conflict with an unresolved factual issue.

SK Prime Med. Supply v. MVAIC · filed 2021-12-10(g)

Accordingly, the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) findings in plaintiff's favor are vacated and the matter is remitted to the Civil Court for a framed issue hearing ( see CPLR 2218) to determine whether MVAIC received the claim forms at issue and thus, the ground upon which defendant's motion for summary judgment dismissing the complaint shall be granted.

CPLR 3212(b) permits expert affidavits on a summary judgment motion even if the expert was not disclosed beforehand under CPLR 3101(d).

Brown v. 43-25 Hunter, L.L.C. · filed 2019-12-12(b)

However, CPLR 3212(b) expressly permits the submission of expert affidavits in connection with a summary judgment motion, even where an expert exchange pursuant to CPLR § 3101(d) was not furnished prior to the affidavit's submission. Therefore, this Court considered the biomechanical engineer's affidavit in its review of the appeal.

CPLR 3212 precludes summary judgment when an expert affidavit raises a genuine issue of fact about when the injury-producing malfunction occurred.

Freedman v. Medtronic, Inc. · filed 1991-03-19

We affirm. The affidavit of plaintiffs medical expert, submitted upon renewal, raised a genuine issue of fact as to the date of the injury-producing malfunction and was sufficient to preclude summary judgment.

An unsworn expert letter that does not state the expert’s qualifications is inadmissible on a summary judgment motion.

Abrahamsen v. Brockway Glass Co. · filed 1989-12-26(b)

In any event, the letter of the plaintiffs’ purported expert was inadmissible, since it was unsworn and failed to outline the expert’s qualifications (see, CPLR 3212 [b]; Zuckerman v City of New York, supra; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068; Clifford v Black Clawson Co., 145 AD2d 808, 810-811; Zoldas v Louise Cab Corp., 108 AD2d 378, 383).

Conflicting expert affidavits that raise questions of fact preclude summary judgment.

Radaelli v. City of Troy · filed 1996-07-25

Turning to the merits, we are of the view that Supreme Court properly concluded that the respective expert affidavits raised questions of fact that cannot be resolved on a motion for summary judgment.

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

Maldonado v. Su Jong Lee · filed 2000-12-04(b)

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

Section 3212 does not permit a court to resolve conflicting expert opinions on a motion for summary judgment.

Repka v. Arctic Cat, Inc. · filed 2004-02-27

Because conflicting expert opinions may not be resolved on a motion for summary judgment, and we must deny Defendants' motions with respect to Plaintiff's design defect claims.

An unsworn expert report is insufficient to raise a triable issue of fact in opposition to summary judgment under Section 3212(b).

Alvarez v. American International Realty Corp. · filed 2009-03-17(b)

Further, the unsworn report of the plaintiffs expert was insufficient to raise a triable issue of fact (see CPLR 3212 [b]; Mazzola v City of New York, 32 AD3d 906, 907 [2006]; cf. CPLR 2106).

Section 3212 precludes summary judgment in a medical malpractice action when conflicting expert opinions present a credibility question for a jury.

Livsey v. Nyack Hospital · filed 2016-10-13

The parties’ conflicting opinions from their respective medical experts preclude the award of summary judgment in favor of Nyack Hospital. Plaintiff’s expert affirmations are neither conclusory nor insufficient to raise a credibility question requiring determination by a jury. As such, Nyack Hospital’s motion for summary judgment is denied.

Under CPLR 3212, conflicting medical expert opinions supported by the evidence preclude summary judgment in a medical malpractice action.

Severino v. Weller · filed 2017-02-21

Summary judgment pursuant to CPLR 3212 permits a defendant to dispose of a case promptly where claims lack merit. It is not intended to deprive a plaintiff of the right to adjudicate claims where factual issues exist. In this case, we adhere to the rule that summary judgment is not authorized in a medical malpractice action where the parties adduce conflicting opinions of medical experts ( see Fernandez v Moskowitz (85 AD3d 566 [1st Dept 2011]).

Section 3212 (b) bars a court from declining to consider an expert affidavit on summary judgment because the expert exchange was not furnished before the affidavit was submitted.

Moreland v. Huck · filed 2017-12-22(b)

We reject that contention. Even assuming, arguendo, that each of the three witnesses provided expert testimony in his affidavit, we note that CPLR 3212 (b) provides in relevant part that, “[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101 (d) (1) (i)] was not furnished prior to the submission of the affidavit.”

Section 3212(b) bars a court from refusing to consider an expert affidavit on summary judgment solely because the expert exchange was not furnished before the affidavit.

Washington v. Trustees of The M.E. Church of Livingston Manor · filed 2018-06-21(b)

Supreme Court did not abuse its discretion in relying on plaintiff's expert affidavit. CPLR 3212 (b) provides that, "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101 (d) (1) (i)] was not furnished prior to the submission of the affidavit." ... In any event, Supreme Court was vested with broad discretion in addressing this expert disclosure issue ( see McColgan v Brewer , 84 AD3d 1573, 1576 [2011]; Gross v Sandow , 5 AD3d 901, 902 [2004], lv dismissed and denied 3 NY3d 735 [2004]), and we find no abuse of that discretion.

Section 3212 requires a court considering a summary judgment motion based on failure to state a cause of action to examine evidence beyond the pleadings and determine whether the party has a cause of action.

Seidler v. Knopf · filed 2020-08-26

On a motion for summary judgment premised on failure to state a cause of action, the court must consider evidentiary material in addition to the pleadings ( see CPLR 3212; Drexler v Highlift, Inc. , 277 AD2d 196, 197; Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md. , 263 AD2d 580, 581-582), and the relevant criterion is not whether the proponent of the pleading has stated a cause of action, but whether that party has one ( see Drexler v Highlift, Inc. , 277 AD2d at 197; see also Alvord & Swift v Muller Constr. Co. , 46 NY2d 276, 280-281).

CPLR 3212 allows a court to treat a motion as seeking both summary judgment and dismissal for failure to state a cause of action when that treatment does not prejudice the opposing party.

Levine v. American Federal Group, Ltd. · filed 1992-02-27

Initially, we note that defendant purportedly moved for "summary judgment”, but cited CPLR 3211 (a) (7), not CPLR 3212. ... It is, therefore, proper, and not prejudicial to plaintiffs to treat the motion as a "hybrid” one for summary judgment and for dismissal pursuant to CPLR 3211 (a) (7) (see, Monteferrante v New York City Fire Dept., 63 AD2d 576, affd for reasons stated 47 NY2d 737).

When a claim’s accrual date cannot be determined from the complaint, a summary judgment motion based on the Statute of Limitations has no meaningful distinction from a motion to dismiss on that ground.

State of New York Higher Education Services Corp. v. Starr · filed 1990-02-01(b)

As a preliminary matter, we address the conflict of whether either or both of the motions were to dismiss the complaint, pursuant to CPLR 3211 (a) (5) or, on the other hand, for summary judgment dismissing the complaint pursuant to CPLR 3212 (b). In our view, where, as here, the date of accrual of the cause of action cannot be discerned from the face of the complaint, there is no meaningful distinction between the two.

CPLR 3212(f) permits denial of a summary judgment motion as premature when relevant facts remain exclusively within the moving party’s knowledge and control.

Murray v. New York City Health & Hospitals Corp. · filed 1990-11-26(f)

However, the motion of Republic Elevator Company, Inc., for summary judgment is premature since it has failed to provide the plaintiff with relevant facts exclusively within its knowledge and control.

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

Park Ridge Hospital, Inc. v. Richardson · filed 1991-07-12(a)

The cross motion was premature since issue had not been joined (see, CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Fargo v Watertown Educ. Assn., 175 AD2d 633 [decided herewith]) and, in any event, the papers submitted in support of the cross motion were insufficient to establish plaintiff’s entitlement to judgment in its favor as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562; Matter of Badenhausen v New York State Dept. of Social Servs., 151 AD2d 913, 914; cf., Community-General Hosp. v Stone, supra).

CPLR 3212(f) permits denial of summary judgment as premature when outstanding discovery includes the opportunity to depose witnesses.

Groves v. Land's End Housing Co. · filed 1991-08-15(f)

Moreover, in light of the outstanding discovery sought by defendants, the opportunity to depose eyewitnesses and other witnesses, the motion for summary judgment was premature.

Section 3212(a) allows a motion to receive summary judgment treatment even when it is not labeled as a summary judgment motion.

Contro v. White · filed 1991-10-17(a)

Although not characterized as such, defendant’s motion was essentially for summary judgment (see, CPLR 3212 [a]) and received summary judgment treatment by Supreme Court.

Section 3212(f) permits denial of summary judgment as premature when needed discovery remains outstanding and discovery deadlines have not expired.

Groves v. Land's End Housing Co. · filed 1992-10-22(f)

Given that defendants in their affidavits asserted that they needed more discovery time to depose witnesses as to the use and existence of safety devices, and given that the discovery timetables set forth in a preliminary conference order had not yet expired, we cannot conclude that the Appellate Division erred in its disposition.

A court may treat a preanswer motion to dismiss and a postanswer summary judgment motion as one summary judgment motion when they raise the same issue and doing so causes no prejudice.

Wyndham Co. v. Wyndham Hotel Co. · filed 1992-11-27

Both the Yasskys’ postanswer motion for summary judgment (CPLR 3212) and the Wyndham defendants’ preanswer motion to dismiss (CPLR 3211) are based upon the contention that plaintiffs lack standing to seek relief for common-law trademark infringement or declaratory relief. Therefore, in the absence of any prejudice, the court will treat the motions as one for summary judgment.

Section 3212(a) requires a summary judgment motion to be made after issue has been joined.

Rourke v. Fred H. Thomas Associates P. C. · filed 1993-01-21(a)

Additionally, CPLR 3212 (a) provides that a motion for summary judgment be made after issue has been joined (CPLR 3212 [a]; see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212.13, at 321).

Section 3212 permits a court to defer summary judgment until discovery is complete when the facts needed to assess the motion remain undeveloped.

Mazzella v. Bronze Plumbing & Heating Corp. · filed 1993-06-03

In view of the conditions testified to by the injured plaintiff, from his limited ability to observe the area, and considering the stage of the proceedings, we agree with Supreme Court that summary judgment should await the completion of discovery.

Section 3212(f) requires a party opposing summary judgment as premature to show that facts needed to oppose the motion are exclusively within the movant’s knowledge.

Adams v. Glass Fab, Inc. · filed 1995-02-03(f)

Moreover, plaintiffs made no showing that the facts needed to oppose the motion for summary judgment were exclusively within Glass Fab’s knowledge (see, CPLR 3212 [f]; C.F.C. Realty Corp. v Empire Fire & Mar. Ins. Co., 110 AD2d 508, 509).

Section 3212(a) permits a court to consider a meritorious summary judgment motion despite a deadline set in a preliminary conference order.

Latimer v. City of New York · filed 1995-09-18(a)

While a trial court possesses great discretion in the management of its own calendar and has appropriate sanctions at its disposal, it was an improvident exercise of the court’s discretion to refuse to entertain the appellants’ motion solely because it was not made within the time constraints imposed by the court’s preliminary conference order (see, CPLR 3212 [a]; Goldheart Intl. v Vulcan Constr. Corp., 124 AD2d 507).

CPLR 3212 permits a party to seek summary judgment on a counterclaim after an amended answer is served, even if the party did not oppose the amendment.

Guzman v. Estate of Fluker · filed 1996-04-29

Contrary to the Supreme Court’s determination, the plaintiff’s motion for summary judgment dismissing the counterclaim cannot be considered untimely based on his failure to oppose the defendants’ motion to amend their answer. Once the amended answer was served, the plaintiff was entitled to move for summary judgment dismissing the counterclaim on the merits.

Section 3212 governs a motion brought after an answer and expressly designated as a motion for summary judgment, despite the trial court’s reference to CPLR 3211 (a) (7).

Alianza Dominicana, Inc. v. Luna · filed 1996-07-18

To the extent that the IAS Court’s decision refers to CPLR 3211 (a) (7), this appears to he an oversight, as the defendant’s motion to dismiss was brought after the defendant had answered the complaint, and was clearly denominated a motion for summary judgment pursuant to CPLR 3212.

Subdivision (f) permits denial of summary judgment as premature when a deposition is likely to produce evidence about material issues.

Daniels v. Otis Elevator Co. · filed 1997-02-27(f)

Since documentary evidence and the deposition testimony of one of Flynn-Hill’s employees shows that there is a likelihood that another employee of Flynn-Hill, namely Ronald Moore, will provide information that will establish whether Flynn-Hill created the condition that caused the instant accident and whether Flynn-Hill had notice of the condition, the motion court properly directed the deposition of Mr. Moore and denied summary judgment as premature (CPLR 3212 [f]; see, Zollner v City of New York, 204 AD2d 626).

CPLR 3212(f) requires a party opposing summary judgment as premature to identify necessary facts that are currently unavailable.

Oeffler v. Miles, Inc. · filed 1997-07-24(f)

... we note plaintiffs’ failure to proffer any viable evidence that there are facts currently unavailable but necessary to appropriately defend the motion (see, CPLR 3212 [f]).

The 120-day deadline for summary judgment motions does not apply when the note of issue was filed before the amendment’s effective date.

General Electric Co. v. W. W. Patenaude & Sons, Inc. · filed 1997-09-26(a)

This court is of the opinion that the revision does not apply retroactively to motions in cases where notes of issue were filed prior to its effective date.

Section 3212 permits a second summary judgment motion in the same action when newly discovered evidence or sufficient cause justifies it.

Tuttle v. Geo. McQuesten Co. · filed 1997-10-23

Recognizing that multiple motions for summary judgment are discouraged, it is well settled that where a party can show newly discovered evidence or sufficient cause, more than one motion is permissible within the same action (see, Schriptek Mktg. v Columbus McKinnon Corp., 187 AD2d 800, 801, lv denied 81 NY2d 704; Manning v Turtel, 135 AD2d 511, 511-512).

Section 3212(a)’s 120-day deadline applies to pending cases with notes of issue filed before the amendment took effect, but the period begins on the amendment’s effective date.

Phoenix Garden Restaurant, Inc. v. Chu · filed 1997-12-18(a)

Thus, applying the amendment to pending cases, such as the one before us, where notes of issue had been filed before the effective date of the amendment, but providing that the 120 day period runs from the effective date of the amendment, eliminates the long-resented practice, by many lawyers, of seeking to delay trials by filing last minute motions for summary judgment, while still preventing the inequitable results of retroactively applying the statute.

For a note of issue filed before January 1, 1997, the amended 120-day deadline for a summary judgment motion runs from that date.

Cortes v. New York City Housing Authority · filed 1998-03-12(a)

While plaintiffs filed their note of issue on January 26, 1996, and defendant moved for summary judgment on April 29, 1997, we have recently held that the 120-day period begins to run from the effective date of the amendment, January 1, 1997, in cases where the note of issue was filed before that date ... As defendant’s motion for summary judgment was made within 120 days of January 1, 1997, it was timely under the statute.

Section 3212 permits a renewed summary judgment motion when the facts warrant it, even though successive motions are disfavored.

Robbins v. K-Mart Corp. · filed 1998-03-12

We reject plaintiffs contention that Supreme Court was precluded from granting the renewed summary judgment motion in that no change in condition of the case existed and it was unreasonable to grant summary judgment considering that a mere three months had passed from the first such motion.

CPLR 3212(a) permits a new summary judgment motion after joinder of issue when an earlier motion under CPLR 3213 was denied to allow a formal complaint.

Gurary v. Light · filed 1998-03-16(a)

Upon joinder of issue, the plaintiff was permitted to file a new motion for summary judgment (see, CPLR 3212 [a]).

For cases pending when the 1996 amendment took effect, section 3212(a) permits a summary judgment motion filed within 120 days of January 1, 1997.

Newman v. Keuhnelian · filed 1998-03-19(a)

Initially, we note that the 1996 amendment to CPLR 3212 (a), effective January 1, 1997, is only a procedural rule not affecting substantive rights. ... have found the státutory amendment not to bar summary judgment motions filed within 120 days of January 1, 1997, the effective date of the statute for cases pending on that date ... a construction that directly applies herein. Hence, the filing of the motion for summary judgment was timely.

CPLR 3212(a) permits a late summary judgment motion for good cause, including pretrial conferences about whether the opposing party will concede liability.

Acosta v. 888 7th Avenue Associates · filed 1998-03-24(a)

Concerning plaintiffs’ time to move for summary judgment, it expired on May 1, 1997, pursuant to CPLR 3212 (a) (Phoenix Garden Rest, v Chu, 245 AD2d 164), but the pretrial conferences held in February and April 1997, at which discussions were had as to whether defendants would concede liability, constituted good cause for permitting the motion to be served on or about May 30, 1997.

CPLR 3212(a) imposes a 120-day deadline for moving for summary judgment after the filing of the note of issue.

Almonte v. Shara Associates · filed 1998-03-26(a)

Defendants’ summary judgment motion was untimely, having been made more than 120 days after both the filing of the note of issue and the effective date (January 1, 1997) of the recent amendment to CPLR 3212 (a) (see, Phoenix Garden Rest, v Chu, 245 AD2d 164).

For a case whose note of issue was filed before January 1, 1997, the 120-day period to move for summary judgment began on that date.

Coleman v. Chesebro-Whitman Co. · filed 1998-03-31(a)

In this action, the note of issue was filed on February 6, 1996, prior to the statute’s effective date. Hence, this case was pending on the date of the statutory amendment and the 120-day period began to run from January 1, 1997.

Section 3212(a) allows a court to hear a late summary judgment motion for good cause when a prematurely filed note of issue caused the delay.

Gonzalez v. United Parcel Service · filed 1998-04-28(a)

The motion court properly exercised its discretion in entertaining defendant’s motion for summary judgment on the merits despite its having been made 19 days beyond the ordinarily applicable time frame set forth in CPLR 3212 (a); had plaintiffs note of issue not been prematurely filed, defendant’s motion would have been well within the statutory time frame and there was, accordingly, good cause for the delay.

Section 3212(a) governs the timeliness of a motion for summary judgment.

Eason v. Howard T. Herber Middle School · filed 1998-05-26(a)

Contrary to the plaintiff’s contention, the defendants’ motion for summary judgment was timely (see, CPLR 3212 [a]; Phoenix Garden Rest. v Chu, 245 AD2d 164; Auger v State of New York, 236 AD2d 177).

The 120-day deadline in CPLR 3212(a) did not apply to summary judgment motions filed before the amendment took effect on January 1, 1997.

Valley Space Theatre Corp. v. New Valley Development Corp. · filed 1998-06-01(a)

Contrary to the plaintiff’s contention, New Valley’s motion for summary judgment, which was made 18 months after the note of issue was filed, was not time-barred.

Section 3212(a) requires a summary judgment motion within 120 days after the note of issue unless the movant shows good cause for the delay; the motion’s merits alone do not establish good cause.

John v. Bastien · filed 1998-09-21(a)

Under these circumstances and in light of the plain language of the statute and the clear intent of the Legislature, this court finds that a showing that a belated summary judgment motion is meritorious is insufficient alone to constitute a showing of “good cause” under CPLR 3212 (a). “[G]ood cause”, as used in CPLR 3212 (a), refers not to the alleged strength of the belated motion but to the reason (i.e., the “cause”) for filing the motion belatedly.

Section 3212(f) permits denial of a summary judgment motion as premature when facts essential to opposing it are within the moving party’s exclusive control.

Sumell v. Wegmans Food Markets, Inc. · filed 1998-10-02(f)

In any event, even if we assume that defendant met its initial burden, plaintiff established that defendant had exclusive possession and control over facts and materials “essential to justify opposition” (CPLR 3212 [f|), and thus defendant’s motion was properly denied because it was premature (cf., Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163-164, rearg denied 52 NY2d 829; Lavin & Kleiman v Heinike Assocs., 221 AD2d 919).

Section 3212(a) requires a summary judgment motion within 120 days after the note of issue is filed unless the court grants leave for good cause; the deadline also applies to cases pending when the amendment took effect.

Rich v. Ciano · filed 1998-10-05(a)

The defendant’s motion was properly denied on the basis that it was untimely under the recent amendment to CPLR 3212 (a) which requires that a motion for summary judgment “shall be made no later than [120] days after the filing of the note of issue, except with leave of court on good cause shown”. Although the note of issue predated the January 1, 1997, effective date of the amendment, we note that this amendment is a procedural rule which does not affect substantive rights (see, Newman v Keuhnelian, 248 AD2d 258). Therefore, the amendment’s provisions may be applied to matters such as the one here which are pending on the effective date of the amendment, absent legislative direction to the contrary (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 55).

Section 3212(a) permits a summary judgment motion more than 120 days after the filing of the note of issue with leave of court for good cause.

Mueller v. Pacicca · filed 1998-10-23(a)

CPLR 3212 (a) provides, in relevant part, that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown”. ... Upon review of the procedural background of this action and applying the foregoing principles, the court hereby grants the first branch of defendant’s motion seeking leave to move for summary judgment pursuant to CPLR 3212 (a).

CPLR 3212 permits a renewed summary judgment motion based on completed pretrial testimony when an earlier motion addressed only to the pleadings was denied without prejudice.

Parisella v. Town of Fishkill · filed 1999-01-19

Defendants’ claim that the pending summary judgment must be denied under the law of the case doctrine is without merit. Defendants’ prior motion for summary judgment which was addressed solely to the pleadings was denied without prejudice. The plaintiffs’ examinations before trial have now been completed. Plaintiffs’ present motion is not merely addressed to the pleadings, but is based on facts as testified to at the examinations before trial.

Section 3212 requires a party opposing summary judgment to submit evidence; failure to oppose does not turn the motion into a review of the pleadings under CPLR 3211.

Tortorello v. Carlin · filed 1999-04-13

Succinctly stated, the failure to oppose a motion for summary judgment under CPLR 3212 does not operate to convert the application into one pursuant to CPLR 3211, permitting the court to confine its consideration to the adequacy of the pleadings.

Section 3212(a) permits a court to consider a summary judgment cross motion made more than 120 days after the note of issue is filed.

Gonzalez v. 98 Mag Leasing Corp. · filed 1999-05-17(a)

The Supreme Court properly addressed the merits of the cross motion, notwithstanding that it was made more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]; Quinlan v Kaufman, 258 AD2d 453).

CPLR 3212(a) requires a summary judgment motion within 120 days after the note of issue is filed, unless the court grants leave for good cause shown.

Stransky v. Tannenbaum · filed 1999-06-01(a)

The defendants’ cross motion was properly denied as untimely under the recent amendment to CPLR 3212 (a) which requires that a motion for summary judgment “shall be made no later than [120] days after the filing of the note of issue, except with leave of court on good cause shown” (L 1996, ch 492, eff Jan. 1, 1997).

CPLR 3212(a) requires good cause to permit a summary judgment motion more than one year after the note of issue was filed and on the eve of trial.

Scocozza v. Tolia · filed 1999-06-21(a)

The Supreme Court improvidently exercised its discretion in permitting the defendant to submit a motion for partial summary judgment more than one year after the note of issue was filed, and on the eve of trial, in view of the fact that the defendant did not demonstrate any good cause for the inordinate delay (see, CPLR 3212 [a]; Rich v Ciano, 254 AD2d 268; Anzalone v Varis, 254 AD2d 381; Krug v Jones, 252 AD2d 572; Phoenix Garden Rest. v Chu, 245 AD2d 164).

A court-set deadline for summary judgment cannot be earlier than 30 days after the note of issue is filed.

Coling Ambulette Service Inc. v. Empire Insurance · filed 1999-06-22(a)

Although the IAS Court’s February 26, 1998 Compliance Conference Order did not specifically extend the court’s previously set April 11, 1998 deadline for making dispositive motions, by extending plaintiffs time to file its note of issue until April 17, 1998, the deadline for dispositive motions was implicitly extended inasmuch as CPLR 3212 (a) requires that the date set by the court, after which no such motion may be made, may not be any earlier than thirty days after the filing of the note of issue, in this case May 18, 1998, the thirtieth day having fallen on a Sunday. Defendant’s motion was timely served by mail on May 13, 1998 and should have been determined on its merits.

Section 3212(a) permits a court to allow a summary judgment motion after its filing deadline in the exercise of its discretion.

Shamelashvili v. City of New York · filed 1999-06-28(a)

The Supreme Court did not improvidently exercise its discretion in permitting the defendants to file their respective motion and cross motion for summary judgment beyond the time limit provided by CPLR 3212 (a) (see, Quinlan v Kaufman, 258 AD2d 453).

When a note of issue was filed before CPLR 3212(a) took effect, a summary judgment motion had to be made within 120 days of its effective date unless the court granted leave for a late motion.

Kearns v. City of New York · filed 1999-07-22(a)

Therefore, defendants had until May 1, 1997 to move for summary judgment and, in the absence of any application for leave to file a late motion, the motion is untimely.

CPLR 3212 (a) permits a summary judgment motion more than 120 days after the note of issue is filed with leave of court on a showing of good cause.

Goodman v. Gudi · filed 1999-09-20(a)

CPLR 3212 (a) provides that motions for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court on “good cause” shown.

Section 3212(b) requires a summary judgment movant to provide proof from a person with knowledge of the facts and to recite all material facts in the moving papers.

S.B. Schwartz & Co. v. G. & H. Real Estate Holding Corp. · filed 1999-10-04(b)

The defendant’s motion 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 moving papers did not recite all the material facts as required.

Section 3212(a) allows a summary judgment motion within 120 days after the note of issue is filed unless the court sets an earlier deadline that is at least 30 days after filing.

Landau v. Oceanside Cove Homeowners, Inc. · filed 1999-10-12(a)

Contrary to the conclusion reached by the Supreme Court, we find that the defendants’ separate motions for summary judgment were timely under CPLR 3212 (a). The motions were made within 120 days of the filing of the note of issue, and the record fails to disclose that the Supreme Court set a date after which no such motions could be made, which was not earlier than 30 days after the filing of the note of issue.

Section 3212(a) permits summary judgment for good cause shown when a motion is made during jury selection.

Giambona v. Stein · filed 1999-10-28(a)

Whether viewed in the context of a motion to dismiss pursuant to CPLR 4401 based upon an admission or a motion for summary judgment pursuant to CPLR 3212 (a) for good cause shown, the complaint was properly dismissed.

CPLR 3212(a) permits a court to deny an untimely summary judgment motion.

Goins v. Prestige Property & Development Co. · filed 1999-12-02(a)

Under the particular circumstances of this case, the summary judgment motion of defendant-appellant Supermarkets General was properly denied by the motion court as untimely pursuant to CPLR 3212 (a).

A summary judgment motion made more than 120 days after the filing of the note of issue requires leave of court on good cause shown.

Perry v. Pagano · filed 1999-12-13(a)

The plaintiffs motion for partial summary judgment on the issue of liability was properly denied since it was untimely pursuant to CPLR 3212 (a). The plaintiffs cross motion was made over 120 days after the filing of the note of issue, and without leave of court on good cause shown (see, Stransky v Tannenbaum, 262 AD2d 301).

Section 3212(f) permits denial of a summary judgment motion as premature when discovery is incomplete and relevant facts are exclusively within the movant’s control.

Hammond v. Alekna Construction, Inc. · filed 1999-12-30(f)

Furthermore, the motion was premature. Plaintiffs established that discovery is incomplete and that facts bearing on the issue of the design of the ventilation system are within the exclusive control of Harza (see, CPLR 3212 [f|; Shellberry v Albright, 262 AD2d 942).

Section 3212(a) permits a court to allow a late summary judgment motion upon good cause shown.

Fainberg v. Dalton Kent Securities Group, Inc. · filed 2000-01-11(a)

...it is also true that the court, upon good cause shown, may allow the filing of a late motion (CPLR 3212 [a]; Goodman v Gudi, 264 AD2d 758).

Section 3212(a) permits a summary judgment motion after the 120-day deadline upon a showing of good cause, including when the moving party was never served with the note of issue.

Cibener v. City of New York · filed 2000-01-20(a)

After joinder of issue, a party may move for summary judgment within 120 days of the filing of a note of issue, or even later upon showing of good cause (CPLR 3212 [a]). ... Here, such cause should have been clear—appellants were never served with the note of issue.

CPLR 3212(a) permits a court to set a summary judgment motion deadline no earlier than 30 days after the note of issue is filed; the statutory outside deadline is 120 days after that filing.

Cotty v. Dime Savings Bank of Williamsburgh · filed 2000-02-28(a)

The defendant’s motion, served on or about September 1, 1998, was well within the outside date provided by the statute, i.e., 120 days after the filing of the note of issue (see, CPLR 3212 [a]). Thus, the motion was timely.

Section 3212(a)'s time limit should not be applied without considering the merits of an unopposed summary judgment motion in these circumstances.

Milne v. Cheema · filed 2000-03-28(a)

We find, in the circumstances, that the court should not have applied the time limit of CPLR 3212 (a) without regard to the merits.

Section 3212(a) requires a summary judgment motion within 120 days after the note of issue is filed unless the court grants leave for good cause shown.

Wagner v. City of New York · filed 2000-04-03(a)

CPLR 3212 (a), as amended effective January 1, 1997, requires a motion for summary judgment to be made within 120 days after the filing of the note of issue, except with leave of court on good cause shown (see, CPLR 3212 [a], as amended by L 1996, ch 492). Here, the motion was made well after the 120-day period, without any showing of good cause for the delay.

Section 3212(a) permits a court to allow a late summary judgment motion in its discretion.

Toro v. City of New York · filed 2000-04-10(a)

The Supreme Court providently exercised its discretion in permitting the defendants to make a late motion for summary judgment (see, CPLR 3212 [a]; Maravalli v Home Depot U.S.A., 266 AD2d 437; Quinlan v Kaufman, 258 AD2d 453).

Section 3212(a) permits a summary judgment motion more than 120 days after the note of issue is filed when the movant shows good cause.

Spaulding v. Metropolitan Life Insurance · filed 2000-04-18(a)

We find, contrary to the view of the motion court, that, under the circumstances, third-party defendant Fred Geller Electrical, Inc. (Geller) demonstrated good cause to move for summary judgment dismissing the third-party complaint, based on the asserted applicability of the antisubrogation rule, more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]).

CPLR 3212(a) requires good cause for leave to make a summary judgment motion more than 120 days after the note of issue is filed.

Welch v. City of Glen Cove · filed 2000-06-12(a)

In support of its motion for leave to file a late motion for summary judgment, the defendant failed to establish good cause (see, CPLR 3212 [a]; Neves v Port Auth., 265 AD2d 393; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937). Thus, the Supreme Court improvidently exercised its discretion in granting such leave.

CPLR 3212(a) allows a court to consider a summary judgment motion filed more than 120 days after the note of issue when good cause is shown.

Gonzalez v. 98 Mag Leasing Corp. · filed 2000-06-15(a)

A trial court thus has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue. ... We conclude that in the present case the trial court did not abuse its discretion in concluding that there was good cause to entertain defendants’ motion for summary judgment.

CPLR 3212(a) permits a court to entertain a summary judgment motion made more than 120 days after the note of issue when the delay is justified.

Hanley v. East Moriches Union Free School District · filed 2000-08-21(a)

The Supreme Court, however, should have exercised its discretion to entertain Montauk’s cross motion for summary judgment even though it was not made within 120 days after the filing of the note of issue ... Montauk ... demonstrated that its delay was justified.

Section 3212(a) permits leave to move for summary judgment after the 120-day deadline when a Court of Appeals decision issued after that deadline supplies the basis for the motion.

Malitizis v. First Unum Life Insurance · filed 2000-09-14(a)

Under the circumstances presented, Supreme Court abused its discretion when it denied plaintiffs application seeking leave to file a motion for summary judgment more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]). We note in this regard that the proposed motion was premised upon the Court of Appeals decision in New England Mut. Life Ins. Co. v Doe (93 NY2d 122), which was decided after the 120-day period had expired.

Section 3212(f) requires an opposing affidavit to show that facts essential to justify opposition may exist but cannot be stated before a summary judgment motion can be rejected as premature.

Casale v. Provident Life & Casualty Insurance · filed 2000-10-02(f)

The defendant’s claim that the plaintiffs motion for summary judgment was premature is without merit. The affidavit submitted in opposition to the plaintiff s motion does not reveal that “facts essential to justify opposition may exist but cannot be stated” (CPLR 3212 [f]).

Section 3212(a) requires summary judgment motions within 120 days after the note of issue is filed, but permits a later motion with leave of court for good cause.

Samuel v. A.T.P. Developent Corp. · filed 2000-10-23(a)

Moreover, the Supreme Court properly exercised its discretion in allowing ATP and Totten to serve motions for summary judgment 141 days after the note of issue was filed (see, Goodman v Gudi, 264 AD2d 758). CPLR 3212 (a) provides that motions for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court on “good cause” shown.

CPLR 3212(a) generally requires a summary judgment motion within 120 days after the note of issue is filed, but permits a late motion for good cause.

Medina v. Barbaro · filed 2001-01-29(a)

CPLR 3212 (a) provides that motions for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court on “good cause” shown. ... Here, the Supreme Court improvidently exercised its discretion in failing to excuse the appellant’s minimal delay in serving the motion where he demonstrated his entitlement to judgment as a matter of law.