N.Y. C.P.L.R. § 3212

Section 3212(a) requires good cause for a summary judgment motion filed more than 120 days after the note of issue.

Rivera v. Columbia Hicks Associates, LLC · filed 2017-06-01(a)

The motion court properly denied Knockdown’s motion as untimely, because Knockdown failed to show “good cause” for moving for summary judgment more than 120 days after the filing of the note of issue (CPLR 3212 [a]; see e.g. Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]).

Section 3212(f) permits a court to deny a summary judgment motion as premature when relevant discovery remains outstanding.

Clinton Place Med., P.C. v. USAA Cas. Ins. Co. · filed 2017-08-11(f)

In view of the foregoing, plaintiff's contention that it is entitled to summary judgment lacks merit because, as the Civil Court noted, plaintiff's motion is premature ( see CPLR 3212 [f]; All Boro Psychological Servs. , 39 Misc 3d 9).

CPLR 3212(f) permits denial of a summary judgment motion as premature when the opposing party has not had a reasonable opportunity to conduct discovery.

Chander v. Eagle Sanitation, Inc. · filed 2017-08-16(f)

Accordingly, the Supreme Court should have denied the plaintiff’s motion for summary judgment on the issue of liability as premature, with leave to renew upon the completion of discovery.

CPLR 3212(a) sets a 120-day deadline after the note of issue for summary judgment motions, allows a court to set an earlier deadline, and requires good cause to consider a late motion.

Lewis v. Rutkovsky · filed 2017-08-29(a)

Under CPLR 3212(a), a motion for summary judgment must be made within 120 days of the filing of the note of issue. So long as it is within that time period, the court may set forth its own deadline, in which case the court's directive controls ( see McFadden v 530 Fifth Ave. RPS III Assoc., LP , 28 AD3d 202, 202-203 [1st Dept 2006]). Accordingly, when a motion for summary judgment is untimely, the movant must show good cause for the delay; otherwise the late motion will not be addressed ( see Andron v City of New York , 117 AD3d 526 [1st Dept 2014]).

Section 3212(a) permits a late summary judgment motion for good cause when discovery was ongoing at the filing of the note of issue with the court’s knowledge and acquiescence.

M.H. v. Bed Bath & Beyond Inc. · filed 2017-11-09(a)

Finally, defendant showed “good cause” for the delay in making its motion for summary judgment (see CPLR 3212 [a]). It is undisputed that discovery was ongoing when the note of issue was filed and that the motion court was aware of and acquiesced in the ongoing discovery (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]; Butt v Bovis Lend Lease LMB, Inc., 47 AD3d 338, 340 [1st Dept 2007]; Quizhpi v Lochinvar Corp., 12 AD3d 252 [1st Dept 2004]).

CPLR 3212(a) requires good cause for an untimely summary judgment motion; counsel’s trial schedule and the case’s complexity do not suffice.

Kenny v. Turner Construction Co. · filed 2017-11-16(a)

The court providently exercised its discretion in denying as untimely Corporate Source’s motion for summary judgment dismissing the complaint as against it (see Brill v City of New York, 2 NY3d 648 [2004]; CPLR 3212 [a]). Counsel’s excuse that the attorney handling the matter had been on trial for two weeks does not constitute good cause, i.e., “a satisfactory explanation for the untimeliness” (id. at 652; see Maschi v City of New York, 110 AD3d 460 [1st Dept 2013]). Nor does the fact that the case is complicated and voluminous constitute good cause.

Section 3212(a) permits denial of a summary judgment motion filed after a court-ordered deadline when issue was already joined by the movant’s answer.

Aristova v. Derkach · filed 2017-11-21(a)

The court correctly denied defendant’s motion for summary judgment invalidating the Termination Agreement as untimely, since it was made after the deadline set in a so-ordered stipulation and on the eve of trial (CPLR 3212 [a]). Contrary to defendant’s argument that he could not make the motion until plaintiff served a reply to his counterclaims, issue was joined on the question of the validity of the termination agreement and other postnuptial agreements when defendant served his answer.

Section 3212(f) requires a party seeking to delay summary judgment to show how unavailable facts could justify opposition to the motion.

Gutierrez v. 451 Lexington Realty LLC · filed 2017-12-05(f)

Furthermore, plaintiff’s motion was not premature. Defendants have not demonstrated how the testimony of plaintiff’s coworker would present facts that would “justify opposition to the motion” (Aburto v City of New York, 94 AD3d 640, 641 [1st Dept 2012]; CPLR 3212 [f]).

Section 3212(a) requires a party filing a late summary judgment motion to show good cause for the delay.

Arcamone-Makinano v. Britton Property, Inc. · filed 2017-12-13(a)

As an initial matter, contrary to the plaintiffs’ contention, their motion for summary judgment was untimely and they failed to demonstrate “good cause” for their delay (CPLR 3212 [a]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

A summary judgment motion made more than 120 days after the filing of the note of issue is untimely.

Casalini v. Alexander Wolf & Son · filed 2018-01-16(a)

The trial court erred in granting defendants' motion in limine because, as defendants' acknowledge in their brief, it was one for summary judgment. As such, it was untimely as it was brought more than 120 days from the filing of the note of issue (CPLR 3212[a]).

Section 3212(a) requires a party moving for summary judgment after the deadline to show good cause in its moving papers; good cause first offered in reply papers cannot be considered.

Mitchell v. City of Geneva · filed 2018-02-02(a)

It is well settled that it is improper for a court to consider the "good cause" proffered by a movant if it is presented for the first time in reply papers ( see Bissell v New York State Dept. of Transp ., 122 AD3d 1434, 1435 [4th Dept 2014]; Cabibel v XYZ Assoc., L.P. , 36 AD3d 498, 498-499 [1st Dept 2007]). Defendants also failed to move to vacate the note of issue. The motion should thus have been denied as untimely ( see CPLR 3212 [a]), and the court should have declined to reach the merits.

Section 3212(a) sets a 120-day deadline after the note of issue is filed for a summary judgment motion and requires good cause for a late motion.

Foo-Lu Co. v. Rojas · filed 2018-04-25(a)

It is undisputed that Fong's motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline ( see CPLR 3212[a]; Nationstar Mtge., LLC v Weisblum , 143 AD3d 866; Giambona v Hines , 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong's counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause "for the delay in making the motion" ( Brill v City of New York , 2 NY3d 648, 652), and no such showing appears in the record ( see Nationstar Mtge., LLC v Weisblum , 143 AD3d at 869; cf. Matter of Gilmore , 131 AD3d 1058).

Under CPLR 3212(f), a party opposing summary judgment as premature must show that further discovery might yield relevant evidence or that facts needed to oppose the motion are exclusively within the movant's knowledge and control.

Cusumano v. AM&G Waterproofing, LLC · filed 2018-04-25(f)

"A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" ( Antonyshyn v Tishman Constr. Corp ., 153 AD3d 1308, 1310 [internal quotation marks omitted]; see Rungoo v Leary , 110 AD3d 781, 783). Here, the parties opposing the motion failed to make the requisite showing ( see Haidhaqi v Metropolitan Transp. Auth ., 153 AD3d at 1329).

CPLR 3212’s summary judgment standard does not govern a motion to dismiss for failure to state a cause of action.

Unitrin Advantage Ins. Co. v. 21st Century Pharmacy, Inc. · filed 2018-05-10

Supreme Court correctly decided the motion brought by defendants, i.e., to dismiss for failure to state a cause of action (CPLR 3211[a][7]; see Leon v Martinez , 84 NY2d 83, 87-88 [1994]). On appeal, defendants rely on the standard for deciding a motion for summary judgment (CPLR 3212) and improperly attempt to shift their burden as movants onto plaintiff.

CPLR 3212(f) requires a party claiming that summary judgment is premature to show that further discovery might yield relevant evidence or that facts essential to oppose the motion are exclusively within the movant's knowledge and control.

Merritt Constr., Inc. v. Town of Kent · filed 2018-08-01(f)

A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant ( see CPLR 3212[f]; Burlington Ins. Co. v Casur Corp ., 123 AD3d 965, 965-966). ... Here, the Town failed to show that discovery would lead to relevant evidence.

When a summary judgment motion was denied without prejudice to renew, the movant need not explain why it omitted evidence from earlier motions.

NYCTL 2009-A Trust v. Morris · filed 2018-09-12(b)

Contrary to the Supreme Court's determination, where, as here, the plaintiffs' prior motion was denied without prejudice to renew, it was not incumbent on the plaintiffs to justify their failure to submit the evidence concerning notice on their prior motions ( see City of New York v Caristo Constr. Corp ., 94 AD2d 688, 689, affd 62 NY2d 819; McMahon v City of New York , 105 AD2d 101, 105; cf . CPLR 2221[e]; see generally CPLR 3212[b]).

Section 3212(a) requires good cause for a delayed summary judgment motion.

Ade v. City of New York · filed 2018-09-12(a)

As the plaintiffs contend, the motion should have been denied as untimely, since the James defendants failed to demonstrate good cause for their delay in making the motion ( see CPLR 3212[a]; Courtview Owners Corp. v Courtview Holding B.V., 113 AD3d 722, 723).

Section 3212(f) permits denial of summary judgment when facts essential to oppose the motion may exist but cannot yet be stated.

Vitale v. 3800 Broadway Assoc., LLC · filed 2018-10-04(f)

The motion court should have denied defendants' motions for summary judgment as premature, since the record indicates that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]).

CPLR 3212(a) requires good cause for a delayed summary judgment motion.

Miller v. Ball · filed 2018-10-17(a)

We agree with the Supreme Court's determination that the defendant's motion, in effect, for summary judgment on his counterclaims was untimely, and that the defendant failed to demonstrate good cause for the delay in making his motion ( see CPLR 3212[a]; Brill v City of New York , 2 NY3d 648, 650; Perini Corp. v City of New York [Department of Envtl. Protection] , 16 AD3d 37, 40).

Section 3212(f) does not justify delaying summary judgment based only on speculation that discovery might uncover evidence sufficient to defeat the motion.

Skura v. Wojtlowski · filed 2018-10-24(f)

Here, the plaintiff did not satisfy her burden of demonstrating that the Lehman defendants' cross motion for summary judgment was premature, since "[t]he mere hope or speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion" ( CitiMortgage, Inc. v Guillermo , 143 AD3d 852, 854; see Cohen v Lebgutt Realty, LLC , 158 AD3d 740, 741; Chou v Ocean Ambulette Serv., Inc. , 131 AD3d 1091, 1093; Seuro-Sosa v Cardona , 112 AD3d 706, 708).

CPLR 3212(a) requires a summary judgment motion filed more than 120 days after the note of issue to show good cause for the delay in the moving papers.

Urmas Med., P.C. v. 21st Century Centennial Ins. Co. · filed 2018-10-26(a)

Since defendant failed to demonstrate, in its moving papers, good cause for not filing its motion within the time frame of CPLR 3212 (a), the Civil Court improvidently exercised its discretion in entertaining defendant's motion after considering the good cause arguments defendant raised for the first time in its reply papers ( see [*2] Nationstar Mtge., LLC v Weisblum , 143 AD3d 866 , 869 [2016]; Goldin v New York & Presbyt. Hosp ., 112 AD3d 578 , 579 [2013]).

CPLR 3212(f) permits denial of a summary judgment motion as premature when facts essential to oppose it may be within the movant’s exclusive knowledge or control.

Marabyan v. 511 W. 179 Realty Corp. · filed 2018-10-30(f)

Plaintiff therefore satisfied her burden of demonstrating that facts essential to oppose defendants' motions may lie within defendants' exclusive knowledge and/or control ( see CPLR 3212[f]; Figueroa at 439; Brooks v Somerset Surgical Assoc. , 106 AD3d 624 [1st Dept 2013]).

Section 3212(a) requires good cause for a late summary judgment motion, even when the request is framed as a motion in limine.

Farias-Alvarez v. Interim Healthcare of Greater N.Y. · filed 2018-11-28(a)

"[A] motion in limine is an inappropriate substitute for a motion for summary judgment" ( Rondout Elec. v Dover Union Free School Dist ., 304 AD2d 808, 810-811). Further, "in the absence of any showing of good cause' for the late filing of such a motion (CPLR 3212[a]) the Supreme Court should have denied the motion" ( West Broadway Funding Assoc. v Friedman , 74 AD3d at 799, citing Brill v City of New York , 2 NY3d 648).

Section 3212 (f) permits denial of summary judgment as premature when an outstanding deposition may reveal evidence relevant to a disputed issue.

Matter of Abele Tractor & Equip. Co., Inc. v. Schaeffer · filed 2018-12-20(f)

Supreme Court properly denied as premature that part of Trustco's summary judgment motion seeking dismissal of plaintiff's tortious interference with contract and tortious interference with prospective business relations claims on the basis that it was not liable for the acts of Schaeffer. Despite plaintiff's repeated requests, McCormick had not yet been deposed, and his deposition may reveal evidence on issues relevant to the disputed element of control ( see CPLR 3212 [f]; Schwengber v Hultenius , 160 AD3d 1083, 1085 [2018]; Gitman v Martinez , 139 AD3d 1175, 1176 [2016]; Spellburg v South Bay Realty, LLC , 49 AD3d 1001, 1002-1003 [2008]).

CPLR 3212(f) permits denial of a summary judgment motion as premature when discovery pertinent to the issues remains outstanding.

Reid v. City of New York · filed 2019-01-10(f)

The motion court also properly denied the motion on the alternate basis that the motion was premature because neither Aguila nor defendant City had provided full responses to discovery demands pertinent to the issues of ownership, control and maintenance of the premises (CPLR 3212[f]; Marabyan v 511 W. 179 Realty Corp. , 165 AD3d 581 [1st Dept 2018]).

CPLR 3212(f) permits denial of a summary judgment motion when the parties have not had an adequate opportunity for discovery and further discovery may yield relevant evidence.

Corvino v. Schineller · filed 2019-01-16(f)

The plaintiff moved for summary judgment before the parties had an adequate opportunity to conduct discovery, as little discovery had taken place and the depositions of the parties had not yet occurred ( see CPLR 3212[f]; Bernstein v New York City Tr. Auth ., 153 AD3d 897, 897-898; Sodhi v 112 Park Enters., LLC , 147 AD3d 1000, 1001; Herrera v Gargiso , 140 AD3d 1122, 1123). Moreover, the defendant submitted evidence suggesting that further discovery might lead to relevant evidence pertaining to the circumstances of the accident ( see Hawana v Carbuccia , 164 AD3d 563; Worley v Safemove Rental , 120 AD3d 667, 668).

Under CPLR 3212(f), a party opposing summary judgment as premature must provide evidence that facts needed to oppose the motion may exist but cannot yet be stated; speculation is insufficient.

Weiss v. Zellar Homes, Ltd. · filed 2019-02-08(f)

In opposing a summary judgment motion as premature pursuant to CPLR 3212 (f), "the opposing party must make an evidentiary showing supporting [the conclusion that facts essential to justify opposition may exist but cannot then be stated, and] mere speculation or conjecture [is] insufficient" ( Resetarits Constr. Corp. v Elizabeth Pierce Olmsted, M.D. Center for the Visually Impaired [appeal No. 2], 118 AD3d 1454, 1456 [4th Dept 2014] [internal quotation marks omitted]).

Section 3212(f) permits denial of a summary judgment motion as premature when discovery is incomplete and the opposing party shows that facts essential to its opposition may exist but cannot yet be stated.

Beck v. City of Niagara Falls · filed 2019-02-08(f)

Contrary to defendant's contention, Supreme Court properly denied the cross motion as premature because discovery, including the depositions of the parties involved in the incident, had not been completed ( see CPLR 3212 [f]; Syracuse Univ. v Games 2002, LLC , 71 AD3d 1531, 1531-1532 [4th Dept 2010]), and plaintiffs, in opposing defendant's cross motion as premature pursuant to CPLR 3212 (f), made the requisite evidentiary showing to support the conclusion that facts essential to justify opposition may exist but could not then be stated ( see Resetarits Constr. Corp. v Elizabeth Pierce Olmstead, M.D. Center for the Visually Impaired [appeal No. 2], 118 AD3d 1454, 1456 [4th Dept 2014]; see also Feldmeier v Feldmeier Equip., Inc. , 164 AD3d 1093, 1097 [4th Dept 2018]).

Section 3212(a) requires a late summary judgment motion to be denied when its issues are not nearly identical to those raised in a timely motion.

Clements v. Securitas Sec. Servs. USA, Inc. · filed 2019-03-13(a)

The separate motions by the defendants Brickman, Group, Ltd., LLC, and Securitas Security Services USA, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them should have been denied as untimely ( see CPLR 3212[a]; Brill v City of New York , 2 NY3d 648, 652). Contrary to their contentions, the issues raised on their untimely motions were not nearly identical to the issues raised on the timely motion of the defendant DTZ, Inc. (hereinafter DTZ), for summary judgment dismissing the complaint insofar as asserted against it ( see Medina v R.M. Resources , 107 AD3d 859, 861; Podlaski v Long Is. Paneling Ctr. of Centereach, Inc. , 58 AD3d 825, 827; Bickelman v Herrill Bowling Corp. , 49 AD3d 578, 580).

CPLR 3212(f) permits a court to deny summary judgment without prejudice when limited discovery leaves essential facts unavailable to the opposing party.

Smith v. Bailey · filed 2019-04-26(f)

"[I]n view of the limited discovery that has been conducted," we conclude that the motion was premature and thus was properly denied without prejudice ( Coniber v Center Point Transfer Sta., Inc. , 82 AD3d 1629, 1629 [4th Dept 2011]; see CPLR 3212 [f]).

After answering, a defendant seeking dismissal on grounds asserted in the answer should make a summary judgment motion under CPLR 3212.

Deutsche Bank Natl. Trust Co. v. DeGiorgio · filed 2019-04-04

Although defendants cross-moved to dismiss the complaint pursuant to CPLR 3211 (a), defendants had filed an answer and, therefore, their cross motion should have been denominated as one for summary judgment under CPLR 3212 dismissing the complaint on grounds asserted in their answer ( see Sager v County of Sullivan , 145 AD3d 1175, 1175 n 1 [2016], lv denied 29 NY3d 902 [2017]).

A postanswer motion labeled as a motion to dismiss is treated as a CPLR 3212 summary judgment motion when it relies on grounds asserted in the answer.

Jones v. State of New York · filed 2019-04-18

Although defendant labeled this motion as a motion to dismiss under CPLR 3211 (a) (2), (7) and (8), the motion was made postanswer and, thus, it was a CPLR 3212 motion for summary judgment that was based upon the CPLR 3211 (a) grounds asserted in defendant's answer ( see Matter of Andrews v State of New York , 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912 [2016]; Chenango Contr., Inc. v Hughes Assoc. , 128 AD3d 1150, 1151 [2015]).

Section 3212(a) permits a court to set a deadline for summary judgment motions; a late movant must seek leave and show good cause for the delay.

Wilmington Sav. Fund Socy., FSB v. McKenna · filed 2019-05-09(a)

Plaintiff did not, as required, seek leave of court prior to filing its late motion ( see CPLR 3212 [a]; Brill v City of New York , 2 NY3d at 652; Harrington v Palmer Mobile Homes, Inc. , 71 AD3d at 1275).

CPLR 3212(f) does not make a summary judgment motion premature unless the opposing party shows that further discovery might yield relevant evidence or that essential facts are exclusively within the movant's knowledge and control.

Kerolle v. Nicholson · filed 2019-05-22(f)

Contrary to the Nicholson defendants' contention, the plaintiffs' motion for summary judgment on the issue of liability was not premature. The Nicholson defendants failed to establish that additional discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiffs ( see CPLR 3212[f]; Williams v Spencer-Hall , 113 AD3d 759, 760; Boorstein v 1261 48th St. Condominium , 96 AD3d 703, 704).

Section 3212(a) requires a party filing a late summary judgment motion to show good cause for the delay.

357 W 54th St. LLC v. Iacob · filed 2019-06-04(a)

Defendant's motion was untimely and she failed to establish good cause for the delay (CPLR 3212[a]; Brill v City of New York , 2 NY3d 648, 652 [2004]).

A party opposing summary judgment as premature must show that discovery may yield relevant evidence or that facts essential to its opposition are exclusively within the moving party’s knowledge and control.

Umanskaya v. 4050 Nostrand Ave. Condominium · filed 2019-06-05(f)

Although the plaintiff contended that Kaled's motion was premature, the plaintiff failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within Kaled's knowledge and control ( see CPLR 3212[f]; Reynolds v Avon Grove Props. , 129 AD3d at 933; Suero-Sosa v Cardona , 112 AD3d at 708).

CPLR 3212(a) requires a summary judgment motion within 120 days after the note of issue unless the court sets another deadline; a late motion requires leave of court and a showing of good cause.

Bargil Assoc., LLC v. Crites · filed 2019-06-19(a)

Motions for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue" (CPLR 3212[a]) unless the Supreme Court has set a different deadline. A party may not file a late summary judgment motion without leave of the court "on good cause shown" (CPLR 3212[a]), which requires the movant to articulate a "satisfactory explanation for the untimeliness" of the motion ( Brill v City of New York , 2 NY3d 648, 652; see Milano v George , 17 AD3d 644, 645). ... Here, the plaintiff's motion was made almost five years after the 120-day deadline expired.

CPLR 3212(f) permits further discovery before summary judgment is decided when facts supporting the opposition may exist but cannot yet be stated.

Rutherford v. Brooklyn Navy Yard Dev. Corp. · filed 2019-07-31(f)

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" ( Brea v Salvatore , 130 [*2]AD3d at 956; see CPLR 3212 [f]; Salameh v Yarkovski , 156 AD3d at 660; Okula v City of New York , 147 AD3d at 968).

CPLR 3212(a) permits a late summary judgment motion for good cause, including when an amended answer is allowed after the motion deadline.

PNC Bank, NA v. Islam · filed 2019-10-09(a)

Initially, since the defendant's cross motion to amend the answer was not granted until March 2, 2016, there was good cause for the plaintiff's delay in moving for summary judgment on the complaint and on the matters alleged in the amended answer, including the twelfth affirmative defense ( see Brill v City of New York , 2 NY3d 648, 652).

Section 3212(a) imposes a 120-day deadline for a summary judgment motion; a motion made after that deadline without an explanation for the delay is untimely.

Hernandez v. 2075-2081 Wallace Ave. Owners Corp. · filed 2019-10-10(a)

The court correctly denied the motion as untimely, since it was made after the 120-day deadline imposed by CPLR 3212(a) had expired and was unaccompanied by an explanation for the lateness ( see Brill v City of New York 2 NY3d 648 [2004]).

CPLR 3212(f) permits denial of summary judgment as premature when facts essential to oppose the motion may be within the moving party's exclusive knowledge or control.

Lyons v. New York City Economic Dev. Corp. · filed 2019-10-17(f)

Accordingly, plaintiffs met their burden of demonstrating that facts essential to justify opposition to the motion may lie within defendants' exclusive knowledge or control ( see CPLR 3212[f]), and defendants' motion should have been denied in its entirety as premature, with leave to renew upon the completion of discovery ( see Marabyan v 511 W. 179 Realty Corp. , 165 AD3d 581, 582 [1st Dept 2018]; Figueroa v City of New York , 126 AD3d 438, 439 [1st Dept 2015]; Brooks v Somerset Surgical Assoc. , 106 AD3d 624, 624-626 [1st Dept 2013]).

Under CPLR 3212(f), a party opposing summary judgment as premature must show an evidentiary basis that discovery may yield relevant evidence or that essential facts are exclusively within the movant's knowledge and control.

Gonzalez v. Goudiaby · filed 2019-11-06(f)

Contrary to the plaintiff's contention, the cross motion was not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the Rahman defendants ( see CPLR 3212[f]; Lazarre v Gragston , 164 AD3d 574, 575; Niyazov v Hunter EMS, Inc. , 154 AD3d 954, 955; Kimyagarov v Nixon Taxi Corp. , 45 AD3d 736, 737).

CPLR 3212(f) permits denial of a summary judgment motion as premature when further discovery is needed concerning records the movant disclosed for the first time in support of its motion.

Martin v. City of New York · filed 2019-11-07(f)

Accordingly, the court should have denied the City's motion as premature and granted plaintiff's request for further discovery regarding the belated disclosure ( see generally CPLR 3212[f]; Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP , 44 AD3d 557, 557 [1st Dept 2007]).

Section 3212(f) requires a party opposing summary judgment as premature to show how further discovery might yield relevant evidence or that essential facts are exclusively within the movant’s control.

Ordonez v. Lee · filed 2019-11-13(f)

Further, the plaintiff's motion was not premature, as the defendant failed to demonstrate how further discovery might reveal or lead to relevant evidence, or that facts essential to oppose the motion were exclusively within the plaintiff's control ( see CPLR 3212[f]; Yiming Zhou v 828 Hamilton, Inc. , 173 AD3d 943).

CPLR 3212(f) requires a party claiming a summary judgment motion is premature to show that further discovery may yield relevant evidence or that essential facts are exclusively within the movant's knowledge and control.

Lazo v. Ricci · filed 2019-12-11(f)

Contrary to the plaintiff's contention, the defendants' motion was not premature. The plaintiff failed to show that additional discovery might lead to relevant evidence or that facts essential to oppose the motion were exclusively within the defendants' knowledge and control ( see CPLR 3212[f]; Zielinski v New Jersey Tr. Corp. , 170 AD3d 927, 929; Corwin v Heart Share Human Servs. of N.Y. , 66 AD3d 814, 815).

CPLR 3212(f) permits denial of summary judgment as premature when facts essential to opposing the motion may be within the moving party's exclusive knowledge or control.

Lyons v. New York City Economic Dev. Corp. · filed 2020-04-23(f)

Accordingly, plaintiffs met their burden of demonstrating that facts essential to justify opposition to the motion may lie within defendants' exclusive knowledge or control ( see CPLR 3212[f]), and defendants' motion should have been denied in its entirety as premature, with leave to renew upon the completion of discovery ( see Marabyan v 511 W. 179 Realty Corp. , 165 AD3d 581, 582 [1st Dept 2018]; Figueroa v City of New York , 126 AD3d 438, 439 [1st Dept 2015]; Brooks v Somerset Surgical Assoc. , 106 AD3d 624, 624-626 [1st Dept 2013]).

Section 3212(f) permits a court to deny a summary judgment motion as premature when the opposing party shows that discovery may yield relevant evidence or that essential facts are exclusively within the moving party's knowledge and control.

Race v. Village of Brewster · filed 2020-07-29(f)

Furthermore, contrary to the plaintiffs' contention, the Village's motion was not premature as the plaintiffs failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the Village ( see CPLR 3212[f]; Lazarre v Gragston , 164 AD3d 574, 575).

Section 3212(f) requires a party seeking discovery before summary judgment to show that the information sought is in the moving party's exclusive possession.

People v. Laurito · filed 2020-08-06(f)

Initially, we agree with Supreme Court that the motion for summary judgment was not premature. Plaintiff waited 11 months to serve discovery demands and served the demands after the motion was scheduled to be heard. Moreover, the majority of plaintiff's demands are more appropriately addressed to a nonparty — defendants' previous employer — rather than defendants. Plaintiff failed to demonstrate that the information sought through discovery was in the exclusive possession of defendants ( see CPLR 3212 [f]; Park Place at Malta, LLC v Berkshire Bank , 148 AD3d 1414, 1417 [2017]; Herba v Chichester , 301 AD2d 822, 823 [2003]).

A summary judgment motion may be denied as premature when key depositions have not occurred.

Figueroa v. Yagudaev · filed 2020-09-04

This court finds that the instant motion summary judgment motion is premature as key depositions have not occurred namely that of Mr. Kaykov.

A motion for summary judgment is premature before the defendant serves an answer.

Matter of Gorelick v. Suffolk County Comptroller's Off. · filed 2020-09-23(a)

The defendant had not served an answer to either the petition or the complaint, and therefore, any motion for summary judgment would have been premature ( see CPLR 3212[a]).

A summary judgment motion is not premature merely because a party has not been deposed when the prospect of finding evidence of comparative negligence is speculative.

Rozo v. Ancona · filed 2020-09-28

Plaintiff's argument that the instant motion is premature since the Defendant Roger Ancona has not been deposed is unavailing. The presumption that further inquiry may yield some evidence of comparative negligence of the part of the Defendant, Roger Ancona is insufficient to overcome the presumption of negligence on the part of CO-Defendants, Rishad Mubarak and Heshantha Ekanayakamudiyanselage.

A summary judgment motion filed after a court-set deadline requires good cause for the delay, and an explanation first offered in reply papers generally cannot establish it.

O'Neil v. Environmental Prods. Corp. · filed 2020-10-07

Here, it is undisputed that the defendant moved for summary judgment approximately 30 days after the date set by the Supreme Court without seeking leave of the court or offering an explanation showing good cause for the delay in their moving papers. As a result, the court improvidently exercised its discretion in considering that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it and in considering the good cause arguments raised for the first time in the defendant's reply papers ( see Nationstar Mtge., LLC v Weisblum , 143 AD3d at 869; Goldin v New York & Presbyt. Hosp ., 112 AD3d at 579).

Section 3212(a) requires good cause for an untimely cross motion for summary judgment against a nonmovant.

Orea v. NH Hotels USA · filed 2020-10-08(a)

The motion court properly determined that the Jolly defendants' cross motion to dismiss plaintiff's complaint against them was untimely, as plaintiff was a nonmovant and the Jolly defendants did not show good cause for the delay ( see CPLR 3212[a]; Kershaw v Hospital for Special Surgery , 114 AD3d 75, 83, 88 [1st Dept 2013]; Puello v Georges Units, LLC , 146 AD3d 561, 562 [1st Dept 2017]).

Section 3212(f) permits a court to deny summary judgment as premature when the opposing party has not had a sufficient opportunity to complete discovery.

Tamburello v. Rubino · filed 2020-10-21(f)

Contrary to the defendants' contentions, the plaintiff's attorney was not at fault for the failure to complete the depositions of these two witnesses, and we cannot conclude that the discovery afforded to the plaintiff was sufficient without these depositions. Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint as premature ( see CPLR 3212[f]).

Section 3212(a) permits denial of a summary judgment motion filed after a court-ordered deadline without a showing of good cause for the delay.

Straight Up Chiropractic, PC v. MVAIC · filed 2020-10-23(a)

Civil Court correctly denied defendant's summary judgment motion as untimely, since it was made after the 120-day deadline set forth in the September 5, 2018 so-ordered stipulation/preliminary conference order, and was unaccompanied by a showing of good cause for the lateness ( see CPLR 3212[a]; Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725 [2004]; Hernandez v 2075-2081 Wallace Ave. Owners Corp. , 176 AD3d 467 [2019]).

A party opposing summary judgment as premature must show that discovery may lead to relevant evidence or that facts essential to its opposition are exclusively within the movant's knowledge and control.

Braddy v. Related Cos. · filed 2020-10-28(f)

Although they contended that the motion was premature, they failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition were exclusively within Vixxo's knowledge and control ( see CPLR 3212[f]; Umanskaya v 4050 Nostrand Ave. Condominium , 173 AD3d at 813).

CPLR 3212(f) permits denial of summary judgment as premature when facts needed to oppose the motion are unavailable to the opposing party.

Kemper Independence Ins. Co. v. AB Med. Supply, Inc. · filed 2020-10-29(f)

As the criteria by which plaintiff determined that an EUO was required constitute facts unavailable to defendants for use in opposing plaintiff's motion, the motion was premature (CPLR 3212[f]).

Section 3212(f) permits a court to defer summary judgment when discovery may reveal relevant evidence or essential facts are within the opposing party's exclusive knowledge and control.

Waters v. Geico Ins. Agency, Inc. · filed 2020-12-02(f)

The defendants' separate motions for summary judgment were not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff ( see CPLR 3212[f]; Rodriguez-Garcia v Bobby's Bus Co., Inc. , 175 AD3d 631, 632).

Section 3212(f) permits denial of summary judgment when facts essential to opposing the motion are exclusively within the movant’s knowledge and control and discovery has not been completed.

A.L. v. Able Healthcare Servs., Inc. · filed 2020-12-02(f)

Contrary to the Supreme Court's determination, the plaintiffs sufficiently demonstrated that Able's motion for summary judgment was premature, since the facts relating to Able's hiring, supervision, and training of Ademaj, which were essential to justify opposition to Able's motion, were exclusively within the knowledge and control of Able and Ademaj, and Able and Ademaj had not yet been produced for their court-ordered depositions ( see Antonyshyn v Tishman Const. Corp. , 153 AD3d 1308, 1310; Schlichting v Elliquence Realty, LLC , 116 AD3d 689, 690; Weslowski v St. Francis Hosp ., 108 AD3d 525, 526). Accordingly, the Supreme Court should have denied Able's motion for summary judgment ( see CPLR 3212[f]).

CPLR 3212(f) allows a party to oppose summary judgment as premature by showing an evidentiary basis that discovery may reveal relevant evidence or that essential facts are exclusively within the other party's knowledge and control.

Howard v. Evans · filed 2020-12-23(f)

Furthermore, the defendant's motion was not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the defendant ( see CPLR 3212[f]; Rodriguez-Garcia v Bobby's Bus Co., Inc. , 175 AD3d 631, 632).

CPLR 3212 (f) permits denial of a premature summary judgment motion when the opposing party shows that facts essential to oppose it may exist but cannot yet be stated.

L&M Group, Ltd. v. Lipsitz · filed 2020-12-23(f)

In opposing defendant's motion as premature pursuant to CPLR 3212 (f), plaintiffs "made the requisite evidentiary showing to support the conclusion that facts essential to justify opposition may exist but could not then be stated" ( Beck v City of Niagara Falls , 169 AD3d 1528, 1529 [4th Dept 2019], amended on rearg on other grounds 171 AD3d 1573 [4th Dept 2019]).

CPLR 3212(f) does not justify denying a summary judgment motion based on speculation that the opposing party possesses documents supporting the claim.

Walsam 316, LLC v. 316 Bowery Realty Corp. · filed 2021-01-26(f)

Plaintiffs' argument pursuant to CPLR 3212(f) that the motion should have been denied because the Jones defendants have exclusive control over documents in their possession that will support plaintiffs' veil-piercing theories, is speculative and therefore unavailing ( see Auerbach v Bennett , 47 NY2d 619, 636 [1979]).

Section 3212(f) permits a court to treat a summary judgment motion as premature when an independent medical examination remains to be completed.

Andujar v. Boyle · filed 2021-01-27(f)

Since we are compelling the plaintiff to appear for an independent medical examination, her motion for summary judgment on the issue of whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident is now premature ( see CPLR 3212[f]; Tamburello v Rubino , 187 AD3d 1092; Cordero v Escobar , 186 AD3d 1315).

Section 3212(a) permits a court to consider a late summary judgment motion when the movant shows good cause for the delay.

Stevens v. RX Med. Dynamics, LLC · filed 2021-02-09(a)

The motion court providently exercised its discretion in considering defendants' motion for summary judgment, although it was filed one day late pursuant to court rules ( see CPLR 3212[a]; Brill v City of New York , 2 NY3d 648, 652 [2004]). In reply to plaintiff's timeliness argument, defendants showed good cause for the delay, explaining that there had been confusion about the deadline for filing the note of issue ( Obiotta v Dukes Sys. Corp. , 132 AD3d 421 [1st Dept 2015]).

Section 3212(f) permits denial of summary judgment as premature when depositions are needed to develop the facts.

Reid v. St. Luke's-Roosevelt Hosp. Ctr. · filed 2021-02-16(f)

Plaintiff's motion for summary judgment on liability is premature. No depositions have yet taken place, and depositions are necessary to flesh out the circumstances of the conduct at issue ( see CPLR 3212[f]).

Section 3212(a) requires a summary judgment motion within 120 days after the note of issue when the court sets no deadline, unless the court grants leave for good cause.

Valiotis v. Bekas · filed 2021-02-24(a)

"CPLR 3212(a) provides that '[i]f no such date is set by the court, [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'" ( Wells Fargo Bank, NA v Apt , 179 AD3d 1145, 1146). Here, the defendant filed his motion beyond the time permitted under CPLR 3212(a) for the making of a motion for summary judgment. He also failed to seek leave of court or to offer any reason for his delay. The Supreme Court therefore properly denied that branch of the [*2]defendant's motion which was for summary judgment as untimely ( see Brill v City of New York , 2 NY3d 648, 650-653).

Section 3212(f) permits denial of summary judgment as premature when the opposing party shows that essential facts may exist but cannot yet be stated without further discovery.

Chern v. Leclerc · filed 2021-02-25(f)

Plaintiff also failed to show that facts essential to justify their opposition to defendants' motion might exist but could not be stated without further discovery and that therefore the motion should be denied as premature ( see CPLR 3212[f]; Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP , 44 AD3d 557, 557 [1st Dept 2007]).

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

Thomas v. Triboro Maintenance Corp. · filed 2021-03-16(f)

Triboro's motion was also premature as depositions had not yet been held and the record revealed that that facts essential to oppose the motion likely lie within the exclusive knowledge and control of Triboro and the tenant ( see e.g. Guzman v City of New York , 171 AD3d 653, 653 [1st Dept 2019]; CPLR 3212[f]).

CPLR 3212(f) requires a party opposing summary judgment as premature to show that discovery may lead to evidence justifying opposition.

Mironov v. Memorial Hosp. for Cancer & Allied Diseases · filed 2021-03-16(f)

The opponents of Re Source's motion on the ground that it is premature, while implying that Re Source's affiant is incorrect, failed to make the requisite showing that discovery may lead to evidence justifying opposition ( see CPLR 3212[f]; Lee v Ana Dev. Corp ., 83 AD3d 545, 546 [1st Dept 2011]; Guerrero v Milla , 135 AD3d 635 [1st Dept 2016]).

CPLR 3212(f) requires a party claiming that a summary judgment motion is premature to show that discovery may yield relevant evidence or that essential facts are exclusively within the opposing party's knowledge and control.

Bacchus v. Bronx Lebanon Hosp. Ctr. · filed 2021-03-23(f)

Plaintiffs failed to support their contention that defendants' motion was premature by showing that discovery might lead to relevant evidence or that the facts essential to justify their opposition to the motion were exclusively within defendants' knowledge and control ( see CPLR 3212[f]; Cajas-Romero v Ward , 106 AD3d 850, 852 [2d Dept 2013]). To the contrary, the evidence related to pecuniary loss was entirely within plaintiffs' control and not dependent on further discovery.

Section 3212(f) permits denial of summary judgment with leave to renew after discovery when facts essential to opposing the motion may exist but cannot yet be stated.

Velasquez v. Consolidated Edison Co. of N.Y. Inc. · filed 2021-05-06(f)

Upon vacatur of the June 2018 order, we deny Trend 21's motion for summary judgment with leave to renew upon the completion of discovery. At the time that Trend 21 made the motion, more than three years ago, it had not yet been deposed or responded to any of the other parties' discovery demands; plaintiff and defendant Tri-Messine Construction Co., which opposed Trend 21's motion, established "that facts essential to justify opposition [might] exist but [could ]not then be stated" (CPLR 3212[f]; see Lyons v New York City Economic Dev. Corp. , 182 AD3d 499 [1st Dept 2020]; Marabyan v 511 W. 179 Realty Corp. , 165 AD3d 581 [1st Dept 2018]).

CPLR 3212(f) does not require denial of summary judgment based only on the hope that further discovery will produce evidence to defeat the motion.

Island Fed. Credit Union v. I&D Hacking Corp. · filed 2021-05-11(f)

Defendants argue that plaintiff's motion for summary judgment should have been denied as premature pursuant to CPLR 3212(f). However, "[t]he mere hope that additional discovery may lead to sufficient evidence to defeat a summary judgment motion is insufficient to deny such a motion" ( Singh v New York City Hous. Auth. , 177 AD3d 475, 476 [1st Dept 2019]).

A summary judgment motion need not be denied as premature under CPLR 3212(f).

Diamond v. Comins · filed 2021-05-12(f)

The plaintiff's motion was not premature ( see CPLR 3212[f]).

CPLR 3212(f) does not require denial of a summary judgment motion merely because the opposing party contends it is premature.

Collins v. Delaware Ave. Enters., Inc. · filed 2021-05-19(f)

Contrary to the plaintiff's contention, the motion was not premature ( see [*2]CPLR 3212[f]).

Section 3212(f) permits denial of a summary judgment motion as premature when the movant has yet to be deposed and may control facts needed to oppose the motion.

Barreto v. City of New York · filed 2021-05-20(f)

The motion was properly denied as premature (CPLR 3212[f]). "[I]n accordance with the statute, this Court has held that a motion for summary judgment should be denied as premature where the movant has yet to be deposed" ( Figueroa v City of New York , 126 AD3d 438, 439 [1st Dept 2015], citing 241 Fifth Ave. Hotel, LLC v GSY Corp. , 110 AD3d 470, 472 [1st Dept 2013]).

CPLR 3212(f) permits deferring summary judgment for discovery when there is an evidentiary basis to believe discovery may yield relevant evidence or essential facts are exclusively within the opposing party’s knowledge and control.

Martin v. County of Westchester · filed 2021-05-26(f)

Contrary to the defendants' contention, that branch of the plaintiff's motion which was for summary judgment on the issue of liability was not premature. The defendants failed to offer an evidentiary basis to suggest that discovery might lead to relevant evidence, or that facts essential to justify opposition to that branch of the motion were exclusively within the knowledge and control of the plaintiff ( see CPLR 3212[f]; Ordonez v Lee , 177 AD3d 756, 757).

After a case is transferred to Civil Court, a summary judgment motion is timely under CPLR 3212(a) when made within 120 days after the Civil Court notice of trial is filed.

Pesquiera v. Nixon · filed 2021-05-28(a)

Contrary to plaintiff's argument, defendants' motion for summary judgment was timely made after the notice of trial was filed in the Civil Court on September 26, 2018 ( see CPLR 3212 [a]).

CPLR 3212(f) permits denial of summary judgment as premature when facts essential to oppose the motion may exist but remain within the moving party’s exclusive knowledge.

Corona v. HHSC 13th St. Dev. Corp. · filed 2021-06-17(f)

Defendants' motion is premature with respect to the Labor Law § 200 and common-law negligence claims, since "it appear[s] . . . that facts essential to justify opposition may exist but cannot . . . be stated" (CPLR 3212[f]) because they lie within defendants' exclusive knowledge ( see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP , 44 AD3d 557, 557 [1st Dept 2007]; Lyons v New York City Economic Dev. Corp. , 182 AD3d 499 [1st Dept 2020]).

CPLR 3212(f) requires a party opposing summary judgment as premature to explain how further discovery may yield relevant evidence or show that facts needed to oppose the motion are exclusively within the other party's knowledge and control.

Kefaloukis v. Mayer · filed 2021-08-04(f)

In opposition, the plaintiff failed to raise a triable issue of fact and did not demonstrate that the defendants' motion should be denied as premature pursuant to CPLR 3212(f). The plaintiff failed to adequately explain how further discovery might lead to relevant evidence or demonstrate that the facts necessary to oppose the motion were exclusively within the knowledge and control of the defendants ( see CPLR 3212[f]; Yiming Zhou v 828 Hamilton, Inc. , 173 AD3d 943; Cajas-Romero v Ward , 106 AD3d 850, 852).

Section 3212(f) permits a court to decline summary judgment when the motion is premature.

Francisco v. Kiara Foods, Inc. · filed 2021-08-11(f)

Additionally, the Supreme Court did not improvidently exercise its discretion in declining to convert La Rosa's cross motion into a motion for summary judgment, as such motion would have been premature at this juncture ( see CPLR 3212[f]; Jones v American Commerce Ins. Co. , 92 AD3d 844, 845; see also Henn v City of New York , 164 AD3d 766, 767; Paolicelli v Fieldbridge Assoc., LLC , 120 AD3d 643, 647).

Section 3212(f) permits a court to deny summary judgment as premature when discovery needed to resolve the motion remains incomplete.

Kowalak v. Keystone Med. Servs. of N.Y., P.C. · filed 2021-08-26(f)

Furthermore, given the parties' differing interpretations of the contract and the fact that none of the parties in this case have been deposed and discovery of written documents is not complete, we conclude that those parts of plaintiff's motion seeking summary judgment dismissing the counterclaims with respect to the non-solicitation and confidentiality clauses are premature ( see CPLR 3212 [f]; Groves v Land's End Hous. Co. , 80 NY2d 978, 980 [1992]; Smith v Bailey , 171 AD3d 1511, 1512 [4th Dept 2019]).

Section 3212(f) permits denial of a summary judgment motion as premature when depositions have not yet been taken.

Nick's Poultry, Inc. v. Seaman Radio Dispatcher, Inc. · filed 2021-10-12(f)

R&G's motion was also made before any depositions had been taken and thus was properly denied as premature (CPLR 3212[f]; see Cannon v New York City Police Dept ., 104 AD3d 454, 454 [1st Dept 2013]).

Section 3212(f) permits denial of summary judgment as premature when outstanding discovery may reveal facts supporting the opposing party's position that cannot yet be stated.

Village of Dobbs Ferry v. Landing on the Water at Dobbs Ferry Homeowners Assn., Inc. · filed 2021-10-13(f)

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" ( Brea v Salvatore , 130 AD3d at 956; see CPLR 3212[f]; Nicholson v Bader , 83 AD3d 802). Here, the Supreme Court properly denied, as premature, the plaintiff's cross motion for summary judgment on the complaint. The plaintiff cross-moved before it responded to the defendant's demand for documents that were in its possession and control or produced a witness for deposition ( see Guo Ping Gu v Malaxos , 192 AD3d 1087).

A summary judgment motion filed after the CPLR 3212(a) deadline requires good cause for the delay; without it, the court must deny the motion.

Bennett v. State Farm Fire & Cas. Co. · filed 2021-10-20(a)

The plaintiffs do not dispute that they did not file their motion within the period specified by CPLR 3212(a), and no good cause for the delay was shown. Thus, the Supreme Court erred in considering the motion on the merits ( see Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725, 726; Brill v City of New York , 2 NY3d at 652; First Union Auto Fin., Inc. v Donat , 16 AD3d 372, 373), and should have denied the motion.

Section 3212(a) requires an untimely summary judgment motion to be denied absent good cause for the delay, though a late cross motion may be considered when a timely motion raises nearly identical grounds.

Dojce v. 1302 Realty Co., LLC · filed 2021-11-03(a)

Pursuant to CPLR 3212(a), courts have "considerable discretion to fix a deadline for filing summary judgment motions" ( Brill v City of New York , 2 NY3d 648, 651), so long as the deadline is not "earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown" ( id. at 651; see CPLR 3212[a]; Lanza v M-A-C Home Design & Constr. Corp. , 188 AD3d 855, 856). ... Here, the Supreme Court erred in considering the plaintiff's untimely cross motion. The cross motion was made months after the deadline imposed by the court had elapsed, and the plaintiff offered no explanation for the delay.

An opponent claiming a summary judgment motion is premature must show that facts essential to oppose it are exclusively within the movant’s knowledge and control.

Harris v. Pelham Parkway Nursing Care & Rehabilitation Facility LLC · filed 2021-12-07(f)

Defendant's argument that plaintiff's motion is premature is improperly raised for the first time on appeal ( see Copp v Ramirez , 62 AD3d 23, 31 [1st Dept 2009], lv denied 12 NY3d 711 [2009]), and, in any event, defendant cannot show that facts essential to oppose the motion were exclusively within plaintiff's knowledge and control (CPLR 3212[f]; see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP , 44 AD3d 557, 557 [1st Dept 2007]).

Section 3212(f) requires a party opposing summary judgment as premature to present evidence supporting its claim that essential facts may be in the moving party's exclusive possession.

Calcagno v. Graziano · filed 2021-12-09(f)

"Although a motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party, the party opposing the motion must make an evidentiary showing to support that conclusion" ( 2 N. St. Corp. v Getty Saugerties Corp. , 68 AD3d 1392, 1395-1396 [2009] [internal quotation marks, brackets and citations omitted], lv denied 14 NY3d 706 [2010]; see CPLR 3212 [f]; Bailey v Dimick , 129 AD3d 1165, 1166 [2015]). Here, plaintiffs failed to make the requisite evidentiary showing, offering nothing more than conclusory assertions that further discovery was needed.

CPLR 3212(f) permits a court to decline to deny a summary judgment motion as premature when the opposing party fails to identify outstanding discovery that would help it oppose the motion.

Harlington Realty Co., LLC v. Lawrence Plumbing Supply Inc. · filed 2022-01-06(f)

The court providently exercised its discretion in declining to deny plaintiff's motion as premature, given that defendants failed to identify outstanding discovery that would enable them to oppose the motion ( see Global Mins. & Metals Corp. v Holme , 35 AD3d 93, 102-03 [1st Dept 2006]; CPLR 3212[f]).

CPLR 3212(a) permits a court to consider a late summary judgment motion when the movant shows good cause for the delay.

Taormina-Fucci v. 100-02 Rockaway Blvd. 26, LLC · filed 2022-01-12(a)

Contrary to the plaintiff's contention, the defendant demonstrated good cause for its delay in making its motion for summary judgment, and the Supreme Court providently exercised its discretion in entertaining the late motion ( see CPLR 3212[a]; Chou v A to Z Vending Serv. Corp. , 36 AD3d 745, 745).

On a CPLR 3212 motion, the court must accept the opposing party’s proof as true and view it in the light most favorable to that party.

Fuzie v. South Haven School District No. 30 · filed 1990-03-13

Because this is a motion for summary judgment the proof of the party opposing the application must be accepted as true and considered in a light most favorable to it (Museums at Stony Brook v Village of Patchogue Fire Dept., 146 AD2d 572).

On a CPLR 3212 summary judgment motion, the court construes the evidence in favor of the party opposing the motion.

Kabia v. Koch · filed 2000-06-30

After televiewing, while the court did not see or hear the controverted words, the court assumes such utterance for the purpose of this CPLR 3212 summary judgment motion herein, since evidence is construed most favorable to claimant, motional opponent.

Section 3212(e)(2) permits a court to hold entry of judgment on partial summary judgment in abeyance for a limited time to avoid prejudice.

S&D Maintenance Co. v. City of New York · filed 1991-01-08(e)(2)

While a stay of enforcement is presently warranted to avoid prejudice to the city (Pease & Elliman v 926 Park Ave. Corp., 23 AD2d 361, affd 17 NY2d 890; cf., Stigwood Org. v Devon Co., 44 NY2d 922; Trans World Maintenance Servs. v Luna Park Hous. Corp., 157 AD2d 586), its duration is appropriately limited to avoid hardship to plaintiff (Dalminter, Inc. v Dalmine, S.p.A., 29 AD2d 852, affd 23 NY2d 653).

Section 3212(e)(2) permits entry of summary judgment to be held in abeyance pending resolution of remaining claims.

Rockefeller Group, Inc. v. Edwards & Hjorth · filed 1990-08-23(e)(2)

However, the entry of judgment should be held in abeyance pending resolution of the remaining claims involved herein (CPLR 3212 [e] [2]).

A motion invoking CPLR 3212 that seeks dismissal for failure to state a cause of action may be treated as a challenge to the sufficiency of the pleading.

1113 8th Avenue Owners Corp. v. Rivieccio · filed 1990-09-18

While defendants grounded their motion on both CPLR 3212 and 3211 (a) (7), they phrased it as one for summary judgment dismissing the complaint for failure to state a cause of action. Accordingly, we view the motion as one testing the sufficiency of the pleading. The allegations are therefore deemed true and plaintiff should be afforded the benefit of all reasonable inferences in its favor.

Section 3212 does not permit a court to resolve credibility disputes on summary judgment when conflicting affidavits raise an issue of fact.

Mirchel v. RMJ Securities Corp. · filed 1994-06-21

It is well settled that it is not the court’s role to pass upon issues of credibility on a summary judgment motion (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341; Dauman Displays v Masturzo, 168 AD2d 204, 205, lv dismissed 77 NY2d 939). The sharply conflicting affidavits submitted by the parties raise an issue of fact as to the enforceability of the alleged 1982 employment agreement (Zuckerman v City of New York, 49 NY2d 557, 562).

Under CPLR 3212, courts may not resolve credibility disputes raised by sharply conflicting affidavits on a summary judgment motion.

Communications & Entertainment Corp. v. Hibbard Brown & Co. · filed 1994-03-03

Summary judgment was also properly denied in view of the parties’ sharply conflicting affidavits since it is well settled that it is not the court’s role to pass upon issues of credibility on a summary judgment motion (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341).

Section 3212 does not permit summary judgment when a jury must resolve the credibility of testimony bearing on a material issue.

Connors v. Paris · filed 1993-12-02

Stated otherwise, the presumption of consent was not "sufficiently rebutted” by defendant’s deposition testimony to warrant judgment in his favor as a matter of law (compare, Guerra v Kings Plaza Leasing Corp., 172 AD2d 583).

CPLR 3212 requires the motion court to leave questions of credibility to the trier of fact.

Craft v. Maier · filed 1990-11-16

The questions of credibility on motions for summary judgment pursuant to CPLR 3212 or 3213 should not be resolved by the motion court; such questions should be deferred to the trier of the facts (see, Davis Acoustical Corp. v Matzen Constr., 57 AD2d 1018, 1019).

CPLR 3212 summary judgment is inappropriate when resolving a claim requires assessing the credibility of evidence at trial.

Klemm v. State · filed 1991-02-04

In the instant case, a resolution of the claim involves an assessment of the credibility of the evidence and should await a trial.

A court deciding a summary judgment motion must leave credibility disputes for trial.

Dollas v. W.R. Grace & Co. · filed 1996-03-05

It was also inappropriate to reject, as being unworthy of belief, the testimony of Walter Robert Bock, offered in opposition to Grace’s motion. The deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint (Harris v City of New York, 147 AD2d 186, 189).

On a CPLR 3212 motion, a court may discount a self-serving affidavit that directly conflicts with the same party’s deposition testimony.

Polly Esther's South, Inc. v. Setnor Byer Bogdanoff, Inc. · filed 2005-09-09

Further, while generally an evaluation of a motion for summary judgment made under CPLR 3212 does not involve determinations of fact or credibility, self-serving affidavits that directly conflict with a party’s own deposition testimony may be discounted.

Section 3212 does not allow a court to weigh the credibility of conflicting evidence on a summary judgment motion.

Rivera v. Rite Lite Ltd. · filed 2006-10-06

Finally, in the context of a summary judgment motion, it is not the court’s role to weigh the respective credibility of conflicting evidence.

Section 3212 does not permit a court to resolve genuine credibility disputes on summary judgment.

Innovative Mun. Prods. (U.S.), Inc. v. Central Equip., LLC · filed 2017-03-07

Nonetheless, "a court may not assess credibility on a summary judgment motion unless it clearly appears that the issues are not genuine, but feigned" ( Dillenbeck v Shovelton , 114 AD3d 1125 , 1127 [3d Dept 2014]), and the damages issues raised by the Bauder affidavit do appear to be legitimate.

A pre-answer motion may not be decided under CPLR 3212 unless the parties first receive notice that it has been converted to a summary judgment motion.

Maki v. Bassett Healthcare · filed 2016-07-21

Initially, we note that, because defendants' motion was made pre-answer, Supreme Court should not have decided it pursuant to CPLR 3212 without first notifying the parties of its conversion (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas Commerce Inc., 283 AD2d 801, 802 [2001]; see also Yule v New York Chiropractic Coll., 43 AD3d 540, 541 [2007]).

CPLR 3212 requires notice to the parties before a court converts a motion to dismiss into one for summary judgment.

Acosta v. Vataj · filed 1991-02-21

It was error for IAS to convert defendants’ motion to dismiss the first cause of action for defamation (CPLR 3211 [a] [7]) into one for summary judgment under CPLR 3212 without any notice to the parties (Four Seasons Hotels v Vinnik, 127 AD2d 310).

A court may convert a dismissal motion to summary judgment without notice when there are no material factual issues and the parties have fully argued the legal issues.

19th Street Associates v. State · filed 1991-04-23

The IAS Court properly converted the motion to one for summary judgment without notice to the non-State defendants, because the action involves no issues of material fact, but only issues of law fully appreciated and argued by both sides, specifically the constitutionality of chapter 473 (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

Section 3212(a) does not permit summary judgment before issue has been joined.

Fargo v. Watertown Education Ass'n · filed 1991-07-12(a)

Supreme Court erred in granting summary judgment to plaintiff before issue had been joined (see, CPLR 3212 [a]).

A court must give the parties notice before treating a CPLR 3211 dismissal motion as a CPLR 3212 summary judgment motion.

Dannasch v. Bifulco · filed 1992-06-23

Moreover, the court failed to give any notice to the parties of its intention to treat the motion made on CPLR 3211 grounds as a motion for summary judgment pursuant to CPLR 3212 (see, Mihlovan v Grozavu, 72 NY2d 506).

Section 3212(a) permits a summary judgment motion only after issue has been joined; a motion made before a defendant can answer an amended complaint is premature.

Valentine Transit, Inc. v. Kernizan · filed 1993-03-02(a)

According to CPLR 3212 (a), a "party may move for summary judgment in any action, after issue has been joined.” In that regard, defendant answered the original amended complaint but was afforded no opportunity to respond to the second amended complaint prior to the court granting Valentine’s motion for summary judgment, which was made at the same time that it requested permission to amend by adding Michael and Rosalyn Alexander as party plaintiffs.

A motion under CPLR 3213 may be converted to a CPLR 3212 summary judgment motion when the defendants have received a complaint, answered it, and opposed the motion.

Big K Kosher Dairy Restaurant, Inc. v. Gross · filed 1993-11-01

However, the defendants were served with a complaint, interposed their answer, and served papers in opposition to the motion for summary judgment pursuant to CPLR 3213. Thus, it was proper for the court to convert the CPLR 3213 motion into one for summary judgment pursuant to CPLR 3212 (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:ll, at 509).

Section 3212 permits a court to treat a motion to dismiss as one for summary judgment when issue has been joined and the parties deliberately chart a summary judgment course.

Flores v. Las Americas Communications, Inc. · filed 1995-08-24

We further note that since issue had been joined and the parties clearly indicated that they were deliberately charting a summary judgment course, the IAS Court did not err in treating plaintiffs’ motion to dismiss pursuant to CPLR 3211 (b) as one for summary judgment pursuant to CPLR 3212 (Mihlovan v Grozavu, 72 NY2d 506).

Section 3212(a) requires issue to be joined before a court may grant summary judgment.

Chakir v. Dime Savings Bank · filed 1996-12-30(a)

The court erred in considering the merits of the plaintiff’s motion for summary judgment since the defendant did not have an opportunity to respond to the complaint, and, therefore, issue had not yet been joined as required under CPLR 3212 (CPLR 3212 [a]).

Section 3212(a) requires issue to be joined before summary judgment is granted; a ruling is premature if the court has not considered the defendant’s answer, even when the answer was filed before the ruling.

Rine v. Higgins · filed 1997-11-19(a)

It is well settled that a motion for summary judgment may not be granted before issue is joined, and there is strict adherence to that requirement (see, CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Leff v Leff, 182 AD2d 401, 402; Park Ridge Hosp. v Richardson, 175 AD2d 631). ... Although, technically, issue was joined the day before the court granted the motion, the principle that summary judgment is premature where the court does not have the benefit of the answer of defendant applies with equal force, where, as here, the record establishes that the court did not consider the answer before it granted the order (cf., Duell v Hancock, 83 AD2d 762).

CPLR 3212 (b) requires a party to await joinder of issue before moving for summary judgment seeking final relief.

United Car & Limousine Foundation Inc. v. New York City Taxi & Limousine Commission · filed 1998-10-16(b)

As a preliminary matter, plaintiff cannot move by way of this preanswer motion for the ultimate relief sought but would have to await joinder of issue and then move for summary judgment, pursuant to CPLR 3212 (b) (see, City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). Thus, the branches of the motion by plaintiff seeking a declaratory judgment and a permanent injunction must be denied.

Section 3212(a)’s requirement that issue be joined does not bar summary judgment when the parties have presented their proof and deliberately pursued summary judgment on a motion under CPLR 3211.

Sherman v. Hallmark · filed 1999-08-23(a)

Respondent argues that petitioners’ cross motion for summary judgment must be denied because respondent has not yet answered, and CPLR 3212 (a) allows summary judgment only “after issue has been joined”. ... No notice from the court is required, however, where “both sides make it unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course [citations omitted].” ... Accordingly, summary judgment is appropriate.

CPLR 3212 notice is unnecessary before granting summary judgment on a preanswer motion when the parties have fully briefed the only issue, a question of law.

Glanzer v. Altman · filed 1999-12-09

Plaintiffs’ preanswer motion for summary judgment was properly entertained by the IAS Court without giving CPLR 3212 notice, the parties’ submissions clearly indicating that the case involved only a question of law fully appreciated and briefed on the motion ... namely, whether the contract provision requiring defendants to submit their application for Board approval within 10 days of contract execution was untenable.

A court may treat a motion to dismiss as a summary judgment motion under CPLR 3212 when the parties have clearly charted a summary judgment course.

1300 Avenue P Realty Corp. v. Stratigakis · filed 2000-12-05

We note that the court below properly treated defendants’ motion to dismiss pursuant to CPLR 3211 (a) (7) as a CPLR 3212 motion, since it appears from a reading of the motion papers that the parties clearly charted a summary judgment course (see, Singer v Boychuk, 194 AD2d 1049; see also, Shah v Shah, 215 AD2d 287).

Section 3212(a) requires issue to be joined before summary judgment may be granted.

Boulevard Mall, L.L.C. v. Knight · filed 2002-12-30(a)

Because issue had not been joined in the action against Avenida, summary judgment could not be granted against it (see CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101).

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

WFR Associates v. Memorial Hospital · filed 2004-04-18(a)

Inasmuch as issue has not been joined in this matter, the court must dismiss the motion as premature (see, CPLR 3212 [a]; Historic Albany Found. v Breslin, 282 AD2d 981, 983 [2001]).

Section 3212(a) generally bars a summary judgment motion before issue is joined, unless the parties deliberately chart a course seeking summary judgment before joinder.

DeMille v. DeMille · filed 2004-07-01(a)

Except in certain limited cases in which a specific finding is made that parties “deliberately charted” a prejoinder-of-issue “course” seeking summary judgment (see, e.g., Four Seasons Hotels v Vinnik, 127 AD2d 310 [1987]), a court is powerless to entertain a summary judgment application prior to joinder of issue (CPLR 3212 [a]; see, Chakir v Dime Sav. Bank of N.Y., 234 AD2d 577 [1996]; Hickey v Travelers Ins. Co., 158 AD2d 112 [1990]). It is uncontroverted that the record before this court and the Appellate Division was submitted prior to joinder of issue with regard to the husband’s counterclaims.

Section 3212 does not permit summary dismissal of a complaint before issue is joined.

Danica Group, LLC v. Kent Realty, LLC · filed 2007-06-05

Where, as here, issue had not yet been joined on the plaintiffs complaint, the court was without power to summarily dismiss the complaint (see CPLR 3212).

Section 3212 summary judgment is ordinarily premature before an answer joins issue, but a court may decide a preanswer motion as one for summary judgment when the parties submit their proof and chart that course.

Yule v. New York Chiropractic College · filed 2007-08-02

As a general rule, summary judgment pursuant to CPLR 3212 is premature prior to issue having been joined by service of an answer ... Moreover, both parties have submitted all of the documentary evidence concerning this dispute, clearly charting a summary judgment course. Therefore, Supreme Court properly decided the motion as one for summary judgment.

A summary judgment motion made before issue is joined is ordinarily premature, but a court may resolve the merits in a declaratory judgment action.

Daley v. M/S Capital NY LLC · filed 2007-10-02(a)

While a summary judgment motion interposed prior to joinder of issue is normally premature (CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]), “in an action for a declaratory judgment, the court has an exceedingly broad discretion in deciding the issues” (Cahill v Regan, 5 NY2d 292, 298 [1959]). It is error to dismiss a complaint seeking declaratory judgment even where the plaintiff is not entitled to the declaration sought (Lanza v Wagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]). Where, as here, the disposition is on the merits, a declaration should be made (Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]).

Section 3212(a) generally requires issue to be joined before summary judgment is sought, but a court may consider an earlier motion when both parties knowingly chart a summary judgment course.

Mancuso v. Rubin · filed 2008-06-10(a)

Although those branches of the motion were technically premature because issue had not been joined (see CPLR 3212 [a]), the plaintiff was clearly on notice that the engineering company was seeking relief pursuant to CPLR 3212, and both the engineering company and the plaintiff submitted evidentiary proof and raised arguments which demonstrated that they were deliberately charting a summary judgment course (see McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545 [2006]; Feitner v Town of Smithtown, 23 AD3d 431, 432 [2005]; Dunn v B&H Assoc., 295 AD2d 396, 397 [2002]).

Section 3212 summary judgment is unavailable on a motion to dismiss when the court has not given notice of conversion and the parties have not charted a summary judgment course.

Chiu v. 1-9 Bond Street Realty, Inc. · filed 2010-12-02

The court correctly denied plaintiffs cross motion for summary judgment, since the court did not give notice of an intent to convert defendants’ motion to dismiss pursuant to CPLR 3211 to a motion for summary judgment (CPLR 3212), and we find, contrary to plaintiffs contention, that defendants did not chart a summary judgment course. Defendants’ papers centered on the statute of limitations issue, not the merits of the case.

Section 3212(b) permits summary judgment on an issue the parties deliberately submitted, but a declaration of an insurer’s duty to defend and indemnify is premature before the insurer answers.

LMIII REALTY, LLC v. GEMINI INSURANCE COMPANY · filed 2011-12-23(b)

The court erred, however, in declaring at this stage of the litigation that defendant is obligated to defend and indemnify LMIII, before defendant answered the complaint (see City of Rochester v Chiarella, 65 NY2d 92, 101-102).

Section 3212(a) bars a summary judgment motion before issue is joined; a defendant’s notice of appearance without an answer does not join issue.

Jbbny, LLC v. Begum · filed 2017-12-20(a)

Where, as here, a defendant has served a notice of appearance, but has not served "a responsive pleading,” in this case, an answer (see CPLR 3011), issue has not been joined, and the plaintiff is barred from seeking summary judgment (see 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d 653 [2010]; Alexandru v Pappas, 68 AD3d 690, 691 [2009]; Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727 [2006]).

Section 3212(b) permits a court to award summary judgment after taking judicial notice of an order that resolves the claim.

Maiga Prods. Corp. v. Hertz Co. · filed 2018-10-12(b)

However, for the reasons stated in K.O. Med., P.C., as Assignee of Brutus Christopher v Mercury Cas. Co. (57 Misc 3d 155[A], 2017 NY Slip Op 51614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), in the interest of judicial economy, upon taking judicial notice of the order of the Supreme Court, New York County, entered April 20, 2017, we award defendant summary judgment dismissing the complaint pursuant to CPLR 3212 (b).

Successive summary judgment motions may be denied when the movant raises no issue that could not have been raised on a prior motion.

Ralston Purina Co. v. Arthur G. McKee & Co. · filed 1991-06-07

In this case, third-party defendants GAF and Silbrico instituted two prior motions, one for summary judgment (CPLR 3212) and the other for dismissal (CPLR 3019). Both motions were denied, and the movants have failed to raise any issue that was not, or could not have been, raised on those prior applications. Under the circumstances, the court properly denied the instant motions.

CPLR 3212(b) allows an appellate court to consider the denial of a party’s summary judgment motion even if that party did not file a notice of appeal.

Bonaparte v. Niagara Mohawk Power Corp. · filed 1992-12-17(b)

Defendants’ failure to file a notice of appeal does not prevent us from considering whether Supreme Court erred in denying their motion for partial summary judgment (see, CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111).

Section 3212 does not authorize appellate review of claims addressed below through a separate dismissal motion rather than a summary judgment motion.

Weimer v. City of Johnstown · filed 1998-04-02

Furthermore, because plaintiffs claims were not before Supreme Court in the context of defendants’ summary judgment motion (see, Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430), but rather were the subject of a separate dismissal motion brought pursuant to CPLR 3211, plaintiff may not invoke the statutory authority provided under CPLR 3212 to have this Court address the merits of these claims (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106).

Section 3212(b) permits a court granting summary judgment to dismiss counterclaims sua sponte when the counterclaims are so intertwined with the granted relief that they must be rejected.

Pensabene v. Lee · filed 1994-12-12(b)

Moreover, the Supreme Court’s sua sponte dismissal of the defendant’s counterclaims was also proper (see, CPLR 3212 [b]; Grimaldi v Pagan, 135 AD2d 496). In this case, the counterclaims were so intertwined with the relief sought by the plaintiff that, in granting the plaintiff summary judgment, the court necessarily had to reject defendant’s counterclaims.

Section 3212(b) permits summary judgment dismissing a counterclaim that lacks sufficient factual support.

Leff v. Leff · filed 1994-03-31(b)

However, to reverse for this reason, when dismissal inevitably would follow because of defendant’s inability to sufficiently allege the underlying fraud, would exalt form over substance. Accordingly, we grant plaintiff summary judgment dismissing the counterclaim pursuant to CPLR 3212 (b).

Section 3212(b) permits a court to dismiss counterclaims on a summary judgment motion when the evidence does not support them.

State Bank of India v. Kaso International, Inc. · filed 1999-05-24(b)

The Supreme Court also should have dismissed the Dandonas’ counterclaims (see, CPLR 3212 [b]) and granted leave to amend the caption to omit the fictitious defendants (see, CPLR 3025 [b]).

A party may raise an unpleaded malpractice claim in opposition to summary judgment and seek to amend the answer, but must offer enough evidence to raise a factual question.

Thaler & Thaler v. Gupta · filed 1994-10-27

We conclude that the failure to raise the malpractice claims in the answer did not preclude Gupta from asserting malpractice in opposition to plaintiff’s motion and seeking to amend the answer (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:10, at 318).

Section 3212 summary judgment examines the underlying evidence, so denial of an earlier motion to dismiss for failure to state a claim does not bar a later summary judgment motion under the law of the case doctrine.

Del Castillo v. Bayley Seton Hospital · filed 1996-10-28

The law of the case doctrine is inapplicable in such a situation because a motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action, which addresses merely the sufficiency of the pleadings, is distinct from a motion for summary judgment pursuant to CPLR 3212, which searches the record and looks to the sufficiency of the underlying evidence (see, Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469).

A denial of a motion to dismiss based on the pleadings does not establish law of the case for a later summary judgment motion based on the evidence.

Thompson v. Lamprecht Transport · filed 2007-04-24

Contrary to the plaintiffs’ contention, the court’s denial of that branch of the defendants’ initial motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint, which was addressed to the sufficiency of the pleadings, did not establish the law of the case for the purpose of their subsequent motion pursuant to CPLR 3212 for summary judgment, which was addressed to the sufficiency of the evidence (see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469 [1987]; M. Dietrich, Inc. v Bentwood Tel. Corp., 56 AD2d 753, 754 [1977]).

Section 3212 allows a summary judgment motion after a motion to dismiss when the earlier motion was not converted to one for summary judgment; the law of the case doctrine does not bar the later motion.

Moses v. Savedoff · filed 2012-06-07

Defendant’s first motion was to dismiss under CPLR 3211; the court declined to convert that pre-answer motion to a summary judgment motion. Thus, the law of the case doctrine was inapplicable to defendant’s subsequent summary judgment motion pursuant to CPLR 3212.

Section 3212 tests the sufficiency of the evidence on summary judgment, so denial of an earlier motion testing the pleadings does not establish law of the case for a later summary judgment motion.

DISCHIAVI, GARY M. v. CALLI, JR., WILLIAM S. · filed 2013-11-08

Contrary to plaintiffs’ contention, this Court’s prior order denying those parts of the respective defendants’ initial motions and cross motions “pursuant to CPLR 3211 (a) (7) to dismiss the complaint, which w[ere] addressed to the sufficiency of the pleadings, did not establish the law of the case for the purpose of their subsequent motion[s] pursuant to CPLR 3212 for summary judgment, which [were] addressed to the sufficiency of the evidence” (Thompson v Lamprecht Transp., 39 AD3d 846, 847).

Section 3212(b) permits written admissions, including an opposing party’s deposition transcript used as an admission, to support a summary judgment motion.

R. M. Newell Co. v. Rice · filed 1997-02-07(b)

In any event, any statutory proscription against the use of a transcript as a "deposition” would not preclude its use as an admission of plaintiff’s controlling principal. CPLR 3212 (b) states that "written admissions” may be submitted on a summary judgment motion.

CPLR 3212 (a) permits a court to treat an order to show cause as a motion for summary judgment limited to liability.

Grebow v. City of New York · filed 1997-04-17(a)

The court treats Grebow’s order to show cause as one for summary judgment, pursuant to CPLR 3212 (a), only as to the issue of liability.

A court may treat a motion that does not identify its procedural basis as a CPLR 3212 summary judgment motion when the supporting documentation shows the movant was deliberately pursuing summary judgment.

Cornick v. Forever Wild Development Corp. · filed 1997-06-26

Notably, plaintiff does not challenge Supreme Court’s apparent decision to treat Estes’ motion, which did not identify the precise CPLR provision under which dismissal was sought, as one for summary judgment pursuant to CPLR 3212. In any event, in light of the extensive extrinsic documentation produced in support of the motion, there can be little question that Estes was "deliberately charting a summary judgment course” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320; accord, Mihlovan v Grozavu, 72 NY2d 506, 508; Deborah Intl. Beauty v Quality King Distribs., 175 AD2d 791, 792-793), and the court’s treatment of the motion as such was proper.

Section 3212(a) does not treat trial calendar congestion as good cause for a summary judgment motion filed more than 120 days after the note of issue.

Surace v. Lostrappo · filed 1998-03-23(a)

The defendant submits that the Trial Calendar two-year congestion constitutes good cause for this court to entertain the instant motion. The court disagrees. Trial Calendar congestion does not constitute good cause shown as contemplated by the statute. Accordingly, the court denies the application as submitted under CPLR 3212 (a).

CPLR 3212(a) permits a late summary judgment motion for good cause, but an unexplained delay does not satisfy that requirement.

Olzaski v. Locust Valley Central School District · filed 1998-12-07(a)

Although the court may excuse the violation of this deadline for good cause, we agree with the Supreme Court that good cause has not been shown in this case. The defendants failed to offer any valid excuse for the delay, and, in its motion, it addressed the “AIDS phobia” claim only, neglecting the remaining causes of action.

A court may treat a motion to dismiss as a summary judgment motion under CPLR 3212 when the parties lay bare their proof and deliberately chart a summary judgment course.

Reiss v. Financial Performance Corp. · filed 2000-11-02

We note that, although the cross motion for dismissal was brought pursuant to CPLR 3211 (a) (1) and (7) and could properly be resolved under these paragraphs, it was, and is, equally appropriate to resolve the cross motion as having been a request for summary judgment pursuant to CPLR 3212.

Section 3212 permits a court to treat a pre-answer motion as one for summary judgment when both parties submit testimony and affidavits and address it as such.

Lurene F. v. Olsson · filed 2002-03-05

As for Michael F.’s claims, while issue has not yet been joined by service of an answer, the present motion (denominated one for “[d]ismissal * * * pursuant to CPLR § 3211 [a] [7] and/or CPLR § 3212”) has been treated by both parties as one for summary judgment, as evidenced by the submission of testimony and affidavits both in support of, and in opposition to, the relief sought. Accordingly, the court shall analyze the issues presented in that context.

CPLR 3212 allows a motion to be treated as one for summary judgment when the parties’ submissions show they charted a summary judgment course.

Clark v. State · filed 2003-02-07

In light of the extensive submissions of both parties, we agree with defendant that the parties charted a summary judgment course (cf. Mihlovan v Grozavu, 72 NY2d 506, 508) and that the court in effect properly treated the motion as one for summary judgment.

Section 3212 permits summary judgment on an unopposed motion when the movant establishes a prima facie entitlement to relief.

Warburton v. State · filed 1997-08-07

There being no opposition, and the defendant having established a prima facie entitlement to the requested relief, its motion for an order pursuant to CPLR 3212 granting it summary judgment dismissing the second and sixth causes of action of the claim for lack of merit is granted.

Section 3212 permits a court to decide an unopposed summary judgment motion on the merits when the motion concerns whether a plaintiff sustained a serious injury.

Dufresne v. Cestra · filed 2000-07-14

It is therefore the holding of this court that a summary judgment motion, pursuant to CPLR 3212, on the issue of “serious injury” may be determined on the merits in the absence of opposing papers.

CPLR 3212(a)’s 120-day deadline for summary judgment motions applies only when the note of issue was filed after January 1, 1997.

Macaluso v. City of New York · filed 1997-08-13(a)

CPLR 3212 (a) does not contain any retroactive language and, therefore, its provisions apply only to a note of issue which is filed after January 1, 1997.