N.Y. C.P.L.R. § 3212

For motions subject to the 1996 amendment, CPLR 3212(a) required filing within 120 days of the amendment’s effective date unless the movant established good cause for delay.

Borelli v. Gegaj · filed 1998-03-26(a)

Supreme Court properly denied defendants’ motion for summary judgment as untimely since they failed to file their motion within 120 days after the effective date of the amendment to CPLR 3212 (a) and failed to establish “good cause” for the delay (L 1996, ch 492; Phoenix Garden Rest, v Chu, 245 AD2d 164; Rodriguez v New York City Health & Hosps. Corp., 245 AD2d 174).

Section 3212(a) requires a motion for summary judgment to be timely, including a motion seeking judgment on an indemnification cross claim.

Humbach v. Goldstein · filed 1998-11-16(a)

We also find that the owners’ separate motion for summary judgment dismissing the complaint, or in the alternative, for summary judgment on their cross claim for common-law indemnification against D & D Elevator, was untimely (see, CPLR 3212 [a]).

A summary judgment motion made within 120 days of the effective date of the amendment to CPLR 3212(a) was timely.

Domenech v. Associated Engineers · filed 1999-01-07(a)

The IAS Court erred in rejecting as untimely the motion by Associated Engineers (Associated) for summary judgment, since it was made within 120 days of the effective date of the amendment to CPLR 3212 (a) (see, Phoenix Garden Rest. v Chu, 245 AD2d 164; see also, Krug v Jones, 252 AD2d 572).

Section 3212(a) allows a court to extend the 120-day deadline for a summary judgment motion on good cause shown; the parties’ stipulation alone cannot extend it.

Coty v. County of Clinton · filed 2007-07-05(a)

By the plain language of the amendment, the 120-day time frame may be extended only “with leave of court on good cause shown” (CPLR 3212 [a]). Thus, the court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval will not suffice.

Section 3212 makes summary judgment inappropriate when unresolved questions of motive and intent require a searching inquiry into alleged political retaliation.

McManus v. Grippen · filed 1997-11-06

Courts have traditionally held that summary judgment is inappropriate to resolve complicated questions of motive and intent in this type of case, for without a searching inquiry, those intent on punishing the exercise of constitutional rights could easily mask their behavior behind a complex web of post hoc rationalizations (see, Peacock v Duval, 694 F2d 644, 646; Kelly v New York State Executive Dept., 203 AD2d 836, 839). Accordingly, Supreme Court properly denied the County’s motion at this stage in the action.

A ruling that a claim is adequately pleaded does not establish factual issues requiring trial under CPLR 3212 or preclude a later summary judgment motion.

Autorama Collision, Inc. v. City of New York · filed 1998-02-24

The IAS Court’s prior decision compelling defendants to accept plaintiffs belatedly served complaint, in the course of which the court deemed the quantum meruit cause adequately pleaded, was not the equivalent of a finding pursuant to CPLR 3212 that there were bona fide factual issues requiring trial for determination (see, Baskin & Sears v Lyons, 188 AD2d 307), and in no way precluded the court from entertaining the subsequent summary judgment motion here at issue.

A party seeking summary judgment must elect among inconsistent positions because summary judgment is procedurally equivalent to a trial.

Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae · filed 1998-04-16

However, summary judgment being the procedural equivalent of a trial, a litigant must elect among inconsistent positions upon seeking expedited disposition (Unisys Corp. v Hercules Inc., 224 AD2d 365, 367, appeal withdrawn 89 NY2d 1031; H.B.L.R., Inc. v Command Broadcast Assocs., 156 AD2d 151, 152).

CPLR 3212(h)'s special summary adjudication standards do not apply when the complaint does not affect the defendant’s rights of public petition and participation before public agencies.

Bell v. Little · filed 1998-05-19(h)

The IAS Court properly found that plaintiffs complaint, alleging that defendant inscribed false and malicious statements on building exteriors and sidewalks, did not affect defendant’s rights of public petition and participation before public agencies and, accordingly, did not offend Civil Rights Law §§ 70-a and 76-a (see, Harfenes v Sea Gate Assn., 167 Misc 2d 647, 650-651), much less warrant application of the special summary adjudication standards set forth in CPLR 3212 (h).

In a custody modification case, a court deciding a summary judgment motion may consider the entire case record and its own memory of prior proceedings.

Laura LL. v. Robert LL. · filed 2000-12-12

The court holds that, on a summary judgment motion in a child custody modification case, the court is permitted to search not only the record before it as contained in the moving papers, but also the entire case record and the court’s own historical memory of the case.

Section 3212(h) places the summary judgment burden on the plaintiff in a SLAPP suit once the moving party shows that the case involves public petition and participation.

Bennett v. Towers · filed 2014-03-13(h)

Further, once a party seeking relief based on the foregoing has demonstrated that the case involves public petition and participation, CPLR 3212 (h) provides that it is the plaintiff, not the moving defendant seeking dismissal of the SLAPP suit, who bears the burden on the summary judgment motion. The plaintiff can avoid dismissal of the action only if it can be shown that the suit has a substantial basis in fact and law, or is supported by a substantial argument for an extension, modification or reversal of existing law.

Section 3212(a) permits a court, in appropriate circumstances, to consider a cross motion for summary judgment without a prior application for leave.

Dewitt v. Port Authority · filed 1998-06-29(a)

Further, under the circumstances it was not an improper exercise of discretion for the Supreme Court to also entertain the cross motion of the codefendant Yonkers without a prior application for leave.

A summary judgment motion made seven months after the note of issue is filed is untimely without good cause for the delay.

Carney v. General Growth Management, Inc. · filed 2004-06-21(a)

The appellant’s motion for summary judgment dismissing the complaint insofar as asserted against it was properly denied as untimely since it made the motion approximately seven months after the note of issue was filed and failed to demonstrate good cause for the delay in making the motion (see CPLR 3212 [a]; Gomez v Kukaj, 290 AD2d 531 [2002]).

CPLR 3212(a)'s good-cause requirement for a delayed summary judgment motion does not apply to a CPLR 3211(a)(7) motion to dismiss.

M&E 73-75, LLC v. 57 Fusion LLC · filed 2020-07-30(a)

Supreme Court properly considered the seller's post note of issue CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action because it can be made at any time (CPLR 3211[e]). Thus, CPLR 3212(a)'s requirement of demonstrating good cause for the delay does not apply ( see Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]).

CPLR 3212(a) requires good cause to file a summary judgment motion after the deadline set by a preliminary conference order.

Waxman v. Hallen Constr. Co., Inc. · filed 2016-05-26(a)

The motion for summary judgment should have been denied as untimely, as it was submitted more than 50 days after the expiration of the deadline imposed by a preliminary conference order, and there was no showing of good cause for the late filing (see CPLR 3212 [a]; Quinones v Joan & Sanford I. Weill Med. Coll. & Graduate Sch. of Med. Sciences of Cornell Univ., 114 AD3d 472, 473 [1st Dept 2014]).

A prematurely filed note of issue resulting largely from a court directive can establish good cause for a summary judgment motion filed after the 120-day deadline.

Ramirez v. Wyeth Laboratories, Inc. · filed 1999-01-08(a)

Accordingly, because the note of issue was filed prematurely largely due to the directions of the court, it cannot be said that Wyeth has failed to establish good cause for the late filing of the summary judgment motion.

Section 3212(a)’s 120-day deadline may be excused for good cause when a summary judgment motion is only slightly late, causes no prejudice, and closely matches a timely motion still awaiting decision.

Miranda v. Devlin · filed 1999-04-12(a)

This cross motion was made approximately five days after the expiration of the applicable 120-day period as provided by CPLR 3212 (a). Nevertheless, in light of the minimal delay, the absence of prejudice, and the fact that the defendant Denise A. Harnett had already served a nearly identical, but timely and as of yet undecided cross motion for summary judgment, good cause warranted the consideration of the Devlin defendants’ cross motion (see, Acosta v 888 7th Ave. Assocs., 248 AD2d 284; cf., Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320).

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

Aurora v. Ford Motor Credit Corp. · filed 1999-11-22(a)

Although the appellant’s motion was not made within 120 days of the filing of the note of issue, he demonstrated good cause for his delay in making the motion (see, CPLR 3212 [a]).

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

Andaloro v. Hidden Ponds Development Corp. · filed 2000-06-05(a)

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion, in effect, for leave to move for summary judgment more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]).

Section 3212(a) permits a court to consider a summary judgment motion filed nine days after the statutory deadline under the circumstances presented.

Bean v. Ruppert Towers Housing Co. · filed 2000-07-06(a)

Notwithstanding the foregoing, plaintiff asserts that defendants’ motion should have been denied because it was untimely (CPLR 3212 [a]). Under the circumstances presented, Supreme Court properly considered defendants’ motion, which was made only nine days after the statutory deadline (see, Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778).

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

Caiola v. Allcity Insurance · filed 2000-11-13(a)

The Supreme Court improvidently exercised its discretion in entertaining the defendant’s motion for summary judgment made on the eve of trial, inasmuch as the defendant failed to demonstrate good cause for the delay in making the motion (see, CPLR 3212 [a]; Morhart v City of New York, 267 AD2d 438; Scocozza v Tolia, 262 AD2d 548).

Section 3212(a) permits a summary judgment motion after the 120-day deadline when the movant shows good cause, including an intervening Supreme Court decision.

Chevere v. Hyundai Motor Co. · filed 2001-04-27(a)

Based on the clear language in Geier, and the timing of its promulgation by the High Court, this Court finds that Hyundai has, in fact, established that “good cause” exists for the granting of an exception in this case to the 120-day rule of CPLR 3212 (a). This Court therefore accepts the summary judgment motion for dismissal as timely.

Section 3212(a) permits a court to deny an untimely summary judgment motion in its discretion.

Monroe v. Consolidated Edison Co. of New York, Inc. · filed 2001-03-26(a)

The Supreme Court providently exercised its discretion in denying, as untimely, the appellant’s subsequent motion, inter alia, for summary judgment (see, CPLR 3212 [a]; Haqq v Synergy Gas, 256 AD2d 442; Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320; Anzalone v Varis, 254 AD2d 381; Rich v Ciano, 254 AD2d 268; Shmulevich v Gabbidon, 253 AD2d 756; Krug v Jones, 252 AD2d 572).

Section 3212(a) permits a late summary judgment motion when the movant demonstrates good cause for the delay.

Cohen v. Central Parking Systems, Inc. · filed 2003-03-03(a)

There is no merit to the plaintiffs’ contention that the Supreme Court should have rejected the defendants’ motion for summary judgment as untimely, since the defendants demonstrated good cause for the delay (see CPLR 3212 [a]).

Section 3212(a) permits a late summary judgment motion for good cause when a later appellate ruling creates a new basis for it.

Trump Village Section 3, Inc. v. New York State Housing Finance Agency · filed 2003-08-28(a)

Once this Court issued its ruling, a completely new basis arose upon which HFA could base its arguments for dismissal. ... Since the appellate adjudication of the nature of HFA’s alleged duties owed plaintiff clearly had a bearing on the viability of the cross claims for contribution and indemnification, the motion court should have found that “good cause” existed for the late filing.

CPLR 3212(a) permits a late summary judgment motion for good cause when the court acquiesced in and knew of ongoing discovery after the note of issue was filed.

Quizhpi v. Lochinvar Corp. · filed 2004-11-18(a)

Good cause existed for the filing of a late motion for summary judgment, pursuant to CPLR 3212 (a), where the court acquiesced in, and had actual knowledge of, ongoing discovery subsequent to the filing of the note of issue.

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

Fitzpatrick v. Fitzpatrick · filed 2006-02-28(a)

The court improvidently exercised its discretion in denying summary judgment on the ground that the motion was untimely and good cause had not been shown for the delay (see CPLR 3212 [a]; cf. Brill v City of New York, 2 NY3d 648, 652 [2004]). The motion was accompanied by an adequate explanation for the delay.

Section 3212(a) requires summary judgment motions within 120 days after the note of issue is filed and permits a late motion upon a showing of good cause.

Castro v. Homsun Corp. · filed 2006-11-21(a)

Summary judgment motions are required to be made within 120 days after the filing of the note of issue. In this case, that period expired on August 30, 2005. Therefore, the motion was untimely. Untimely made summary judgment motions must be denied outright, irrespective of their merits, unless good cause is shown for the delay (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]). In this instance, good cause was shown for the three-day de minimis delay in making the motion. The defendants’ counsel submitted an affidavit asserting that he was ill during a portion of the relevant time period.

Section 3212(a) permits a court to consider an untimely summary judgment cross motion when a timely motion raises nearly identical grounds, which may provide good cause.

Grande v. Peteroy · filed 2007-04-10(a)

In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212 [a]) to review the untimely motion or cross motion on the merits.

Section 3212(a) allows a late summary judgment motion when the clerk rejected an earlier timely motion because of confusion over the caption partly caused by the opposing party.

Mayer v. New York City Transit Authority · filed 2007-04-17(a)

The Transit Authority showed good cause for the late filing of its motion (CPLR 3212 [a]), namely, the Clerk’s rejection of its prior timely motion because of confusion over the proper caption, in part caused by plaintiff.

CPLR 3212(a)'s good-cause requirement does not apply to a post-note-of-issue motion to dismiss for failure to state a cause of action.

Chuqui v. Church of Saint Margaret Mary · filed 2007-04-24(a)

Defendant’s post-note of issue motion to dismiss for failure to state a cause of action was timely since such a motion can be made at any time (CPLR 3211 [e]), and the CPLR 3212 (a) requirement of demonstrating good cause for the delay is not implicated.

Section 3212(a) allows a summary judgment motion after the 120-day period on a showing of good cause, including delay caused by the opposing party’s request for further disclosure.

In re the Estate of Adamo · filed 2007-06-28(a)

Accordingly, under the unique circumstances presented in this case, including that it was the objectant who raised the specter of requiring additional disclosure until shortly before the instant application was made and that the proponent did not want to move for summary judgment until the objectant would not be able to rely upon the need for further disclosure as a defense to the motion, the court finds that the proponent demonstrated good cause to grant leave to move for summary judgment after the 120-day period (Gonzalez v 98 Mag Leasing Corp., supra at 129; Pena v Women’s Outreach Network, Inc., 35 AD3d 104, 108 [2006]; Certified Elec. Contr. Corp. v City of New York [Dept. of Transp.], 23 AD3d 596 [2005]; Quizhpi v Lochinvar Corp., 12 AD3d 252 [2004]).

CPLR 3212 (a) requires good cause to make a summary judgment motion more than 120 days after the note of issue is filed; without good cause, the motion is denied without reaching its merits.

Lyons v. Donnelly · filed 2008-08-19(a)

CPLR 3212 (a) provides that a motion for summary judgment may not be made more than 120 days after the filing of the note of issue “except with leave of court on good cause shown” (see generally Brill v City of New York, 2 NY3d 648 [2004]). The defendant failed to show “good cause” for the substantial delay between the filing of the note of issue and the making of the subject motion (see Soltes v 260 Waverly Owners, Inc., 42 AD3d 565, 565-566 [2007]; Jones v Ricciardelli, 40 AD3d 936 [2007]). Thus, the defendant’s motion should have been denied without consideration of the merits.

Section 3212(a) permits a late summary judgment motion on good cause shown; waiting for a needed deposition transcript can establish good cause.

Rodriguez v. Sequoia Property Management Corp. · filed 2009-05-08(a)

In the absence of a court-ordered rule to the contrary, CPLR 3212 (a) requires motions for summary judgment to be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown. ... Since the City demonstrated good cause for the delay, its cross motion is deemed timely, and will be considered hereafter on the merits.

Section 3212(a) permits a court to deny an untimely summary judgment motion when the movant fails to show good cause for the delay.

Chechile v. Magee · filed 2009-10-06(a)

The Supreme Court did not improvidently exercise its discretion in denying, as untimely, the defendant’s motion for summary judgment dismissing the complaint.

Section 3212(a) permits a late summary judgment motion on a showing of good cause; significant discovery outstanding when the note of issue was filed can establish good cause.

Richardson v. JAL Diversified Management · filed 2010-05-18(a)

... the defendant demonstrated good cause for the delay in filing its motion for summary judgment, since the note of issue was filed while there was significant discovery outstanding (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745 [2008]; Sclafani v Washington Mut., 36 AD3d 682 [2007]).

CPLR 3212(a) requires good cause for a late summary judgment motion, and the motion court has broad discretion to decide whether the moving party has shown it.

Fine v. One Bryant Park · filed 2011-05-03(a)

It is undisputed that defendants failed to file the motion within the time period set by the assigned IAS judge. The motion court concluded that defendants failed to establish good cause for the delay in making the motion (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). A motion court’s exercise of its broad discretion in determining whether the moving party has established good cause for delay will not be overturned unless it was improvident (see Daley v M/S Capital NY LLC, 44 AD3d 313, 315 [2007]; Pena v Women’s Outreach Network, Inc., 35 AD3d 104, 108 [2006]). Inasmuch as the record establishes that defendants could have easily determined which judge was assigned to the matter (see Giudice v Green 292 Madison, LLC, 50 AD3d 506 [2008]), the court’s exercise of its discretion was not improvident.

CPLR 3212(a) requires good cause for an untimely summary judgment motion; misplacing a necessary affidavit does not establish good cause.

Jones v. Manor · filed 2011-05-17(a)

Defendant’s excuse that it failed to timely file its motion due to the misplacement of a necessary affidavit does not ...demonstrate “good cause” within the meaning of CPLR 3212 (a) (see Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37, 40 [2005]).

Section 3212 permits a late summary judgment motion for good cause when an erroneous court-reported note-of-issue date caused a one-day delay.

Derby v. Bitan · filed 2012-11-28(a)

The court finds that the defendant has demonstrated good cause for bringing his summary judgment motion one day late. The defendant calculated his deadline to serve the motion for summary judgment based upon the note of issue filing date as reported on eCourts and downloaded by e-Law. According to the reported filing date, the defendant’s motion was timely. However, because of the error in reporting the correct filing date the defendant’s motion was in actuality one day late.

A summary judgment motion filed five days after the deadline may be considered when the movant demonstrates good cause for the delay.

Matos v. Schwartz · filed 2013-03-06(a)

Although Martin’s motion was made five days beyond the deadline fixed by CPLR 3212 (a), he demonstrated good cause for this de minimis delay (see Valenzano v Valenzano, 98 AD3d 661, 662 [2012]; Popalardo v Marino, 83 AD3d 1029, 1030 [2011]; Castro v Homsun Corp., 34 AD3d 616, 617 [2006]; Stimson v E.M. Cahill Co., Inc., 8 AD3d 1004, 1005 [2004]).

CPLR 3212(a) permits a summary judgment motion after the 120-day filing period when the movant establishes good cause for the delay.

Nisimova v. Starbucks Corp. · filed 2013-07-03(a)

The Supreme Court improvidently exercised its discretion in declining to entertain the defendants’ motion for summary judgment dismissing the complaint (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]), inasmuch as the defendants established good cause for the delay in making the motion beyond the 120-day filing period (see Adika v Dramitinos, 74 AD3d 848, 849 [2010]).

Section 3212(a) requires good cause for a late summary judgment motion; counsel’s trial in another case is law office failure and does not satisfy that requirement.

Maschi v. City of New York · filed 2013-10-08(a)

Defendant’s excuse for filing a tardy motion — that counsel was on trial in another case — does not satisfy the “good cause” requirement (CPLR 3212 [a]) inasmuch as it is essentially an excuse of law office failure (see Fofana v 41 W. 34th St., LLC, 71 AD3d 445, 448 [1st Dept 2010]; Azcona v Salem, 49 AD3d 343 [1st Dept 2008]; Breiding v Giladi, 15 AD3d 435 [2d Dept 2005]).

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

Derby v. Bitan · filed 2013-12-26(a)

Upon renewal, the Supreme Court providently exercised its discretion in reaching the merits of the defendant’s prior motion for summary judgment despite the fact that it was made one day beyond the statutorily prescribed period for making such motions (see CPLR 3212 [a]). The new evidence submitted by the defendant in support of his renewal motion established good cause for the de minimis delay (see generally DeFilippo v Miller, 106 AD3d 770, 771 [2013]; Popalardo v Marino, 83 AD3d 1029, 1030 [2011]; Mayer v New York City Tr. Auth., 39 AD3d 349, 349 [2007]; Castro v Homsun Corp., 34 AD3d 616, 617 [2006] ; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

The good-cause requirement for a late summary judgment motion applies to a shorter court-ordered or stipulated deadline as well as the statutory 120-day deadline.

Quinones v. Joan & Sanford I. Weill Medical College & Graduate School of Medical Sciences of Cornell University · filed 2014-02-11(a)

Contrary to the distinction defendant seeks to draw, it does not matter whether a motion for summary judgment has been made more than 120 days after the filing of the note of issue or after the expiration of a shorter time limit set by a court order or stipulation.

CPLR 3212(a) requires good cause to serve and file a late motion for summary judgment.

Planas v. New York City Housing Authority · filed 2014-06-04(a)

Contrary to the Supreme Court’s conclusion, the defendant did not demonstrate good cause for its failure to timely serve and file its motion for summary judgment, as required by CPLR 3212 (a) (see Brill v City of New York, 2 NY3d 648 [2004]; Finger v Saal, 56 AD3d 606, 606-607 [2008]; cf. Adika v Dramitinos, 74 AD3d 848, 848-849 [2010]).

CPLR 3212(h) does not apply to a licensee’s suit against a witness compelled to testify in criminal proceedings in exchange for immunity.

OSJ, Inc. v. Work · filed 1999-04-12(h)

It is not contemplated in the relevant subdivisions of CPLR 3211 and 3212 that such subdivisions should apply in a situation where an entity which is already licensed with the State is charged with criminal offenses and the defendant is compelled to testify adversely in exchange for immunity from prosecution.

Section 3212(h) requires summary judgment in an action involving public petition and participation unless the responding party shows a substantial basis in fact and law or a substantial argument for changing existing law.

T.S. Haulers, Inc. v. Kaplan · filed 2002-06-24(h)

Accordingly, a motion for summary judgment made in such an action “shall be granted unless the party responding to the motion demonstrates that the action, claim, cross claim or counterclaim has a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law” (see CPLR 3212 [h]).

Section 3212(h) requires summary judgment for the defendant in a public petition and participation action unless the plaintiff shows a substantial basis in fact and law or a substantial argument for changing existing law.

Novosiadlyi v. James · filed 2010-02-09(h)

In addition, summary judgment must be awarded to the defendant unless the plaintiff demonstrates, in opposition, that the action has “a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law” (CPLR 3212 [h]).

In a foreclosure action, a plaintiff makes a prima facie showing for summary judgment by producing the mortgage, unpaid note, and evidence of default.

US Bank N.A. v. Flynn · filed 2010-03-12

Here, the moving papers established the plaintiffs entitlement to summary judgment on its complaint to the extent it asserts claims against answering defendant Flynn as they included copies of the mortgage, the unpaid note and due proof of a default in payment.

Section 3212(h) allows a claim in an action involving public petition and participation to survive summary judgment when it has a substantial basis in fact and law.

NATIONAL FUEL GAS DISTRIBUTION v. PUSH BUFFALO · filed 2013-03-22(h)

Nevertheless, we conclude that the court properly refused to dismiss the claims against PUSH for trespass inasmuch as plaintiff’s action has “a substantial basis in fact and law” (CPLR 3212 [h]), and we conclude that the court properly granted those parts of plaintiff’s cross motion for partial summary judgment on liability on those claims.

In a SLAPP suit, a plaintiff opposing summary judgment must demonstrate a substantial basis in fact and law for the action.

Southampton Day Camp Realty, LLC v. Gormon · filed 2014-06-25(h)

In opposition, the plaintiffs failed to demonstrate a substantial basis in fact and law (see CPLR 3212 [h]) in support of their allegations that the challenged statements amounted to defamation per se (see Matter of Konig v CSC Holdings, LLC, 112 AD3d 934, 935 [2013]), that the statements were known to be false by the defendants, or that they were made with reckless disregard for the truth (see T.S. Haulers v Kaplan, 295 AD2d 595, 598 [2002]).

In an action involving public petition and participation, a plaintiff can defeat summary judgment by showing that the action has a substantial basis in fact and law.

International Shoppes, Inc. v. At the Airport, LLC · filed 2015-09-02(h)

While we share the dissent's concern for safeguarding the rights of citizens to comment on matters of public concern, and we acknowledge that "Civil Rights Law § 76-a was enacted to provide special protection for defendants in actions arising from the exercise of their rights of public petition and participation by deterring SLAPP actions" ( Novosiadlyi v James , 70 AD3d at 794; see Allan & Allan Arts v Rosenblum , 201 AD2d 136, 143-144), we conclude that the plaintiffs sustained their statutory burdens in opposition to the motion by demonstrating that the action "has a substantial basis in fact and law" (CPLR 3212[h]; see Giorgio v Pilla , 100 AD3d 826; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison , 22 AD3d 587).

Section 3212(h) permits summary judgment against a SLAPP claim unless the party asserting it shows a substantial basis in fact and law.

Waterways at Bay Pointe Homeowners Ass'n v. Waterways Development Corp. · filed 2015-10-28(h)

Where a party has established that the action, claim, or counterclaim against it is a SLAPP suit, that party is entitled to summary judgment unless the party asserting the action, claim, or counterclaim can demonstrate that it has “a substantial basis in fact and law” (CPLR 3212 [h]; see Civil Rights Law § 70-a [1] [a]; Southampton Day Camp Realty, LLC v Gormon, 118 AD3d at 978; Giorgio v Pilla, 100 AD3d 826, 828 [2012]; Matter of Related Props., Inc. v Town Bd. of Town / Vil. of Harrison, 22 AD3d at 591).

An unsupported counterclaim does not preclude summary judgment on an otherwise meritorious claim.

Marinelli v. Shifrin · filed 1999-04-15

Contrary to defendant’s contention, the mere assertion of counterclaims does not operate to preclude the award of accelerated judgment.

Section 3212(e)(2) allows a court to grant judgment for the full amount of a claim while staying execution until counterclaims are determined.

Interstate Equipment Corp. v. Bell · filed 2001-11-29(e)(2)

Significantly, Supreme Court did not elect the alternative of granting a judgment for the entire amount while staying execution pending determination of the counterclaims (see, CPLR 3212 [e] [2]; ...).

An objection to the timing of a summary judgment motion under CPLR 3212(a) is waived when the objecting party cross-moves for partial summary judgment.

Deringer v. Rossi · filed 1999-04-29(a)

We need not reach the issue of any prejudice by reason of the City’s tardiness in moving for summary judgment on the eve of trial (cf., CPLR 3212 [a]), after the impaneling of a jury. Plaintiffs waived this objection by cross-moving for partial summary judgment.

A party waives an objection to a summary judgment motion filed more than 120 days after the note of issue by expressly consenting to the motion's timing.

Lagattuta-Spataro v. Sciarrino · filed 2021-02-05(a)

We reject defendants' contention that the motion should have been denied as untimely because it was made more than 120 days after the filing of the note of issue without a showing of good cause for the delay ( see generally CPLR 3212 [a]; Brill v City of New York , 2 NY3d 648, 652 [2004]). Such a contention is waived where the nonmovant expressly consents to the timing of the motion ( see Bennett v St. John's Home [appeal No. 2], 128 AD3d 1428, 1428-1429 [4th Dept 2015], affd 26 NY3d 1033 [2015]).

CPLR 3212(a) permits a trial court to set and extend the deadline for filing summary judgment motions.

Johnson v. Bernier · filed 2020-09-03(a)

Initially, "[p]ursuant to CPLR 3212 (a), Supreme Court was free to establish its own deadline for the submission of a motion for summary judgment" ( Vanderlyn v Daly , 97 AD3d 1053, 1055 n 2 [2012], lv denied 20 NY3d 853 [2012]). Moreover, "[a] trial court is vested with the exclusive authority to extend filing deadlines" ( Wilmington Sav. Fund Socy., FSB v McKenna , 172 AD3d 1566, 1567 [2019]). Under these circumstances, we cannot conclude that Supreme Court abused its discretion in setting a February 22, 2019 deadline for dispositive motions in this matter.

Section 3212(a) permits a court to set a deadline for summary judgment motions; a motion that meets that deadline is timely.

Jeannette S. v. Williot · filed 2020-01-31(a)

We also reject plaintiff's contention that Kaleida Health's motion for summary judgment was untimely. Kaleida Health complied with the court-ordered deadline for the filing of summary judgment motions ( see CPLR 3212 [a]; see generally Brill v City of New York , 2 NY3d 648, 652 [2004]).

Section 3212(a) permits a court to entertain a summary judgment motion filed after the deadline in a preliminary conference order.

Maravalli v. Home Depot U.S.A., Inc. · filed 1999-11-22(a)

The court properly exercised its discretion in entertaining the defendant’s motion for summary judgment even though the motion 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).

Reply papers may support a request for leave to serve a summary judgment motion after the CPLR 3212(a) time limit when the issue is first raised in opposition.

Ioele v. Wal-Mart Stores, Inc. · filed 2002-01-03(a)

Defendant’s reply papers, including its expert’s affidavit, properly countered plaintiffs’ opposition to its summary judgment motion, but also supported defendant’s motion for leave to serve its motion beyond the limitation of CPLR 3212 (a), an issue first raised in plaintiffs’ opposing papers.

CPLR 3212(a) provides a 120-day period for moving for summary judgment, unless the court sets a shorter period.

Dodds v. Alfaro · filed 2002-01-14(a)

The Supreme Court erred in denying the defendant’s motion for summary judgment dismissing the complaint as untimely. The motion was made well within the 120-day period provided by CPLR 3212 (a).

Section 3212(a) does not automatically prevent a court from considering a summary judgment motion made more than 120 days after the note of issue was filed.

Feinerman v. Kaplan · filed 2002-01-22(a)

The Supreme Court properly addressed the merits of the defendants’ motion for summary judgment, notwithstanding that it was made more than 120 days after the filing of the note, of issue (see, CPLR 3212 [a]; Andaloro v Hidden Ponds Dev. Corp., 273 AD2d 185; Quinlan v Kaufman, 258 AD2d 453; Gonzalez v 98 Mag Leasing Corp., 261 AD2d 508, affd 95 NY2d 124).

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

Gomez v. Kukaj · filed 2002-01-28(a)

Although more than 120 days elapsed since the filing of the note of issue in this action, the defendant moved for summary judgment dismissing the complaint without seeking leave of the court or establishing good cause (see, CPLR 3212 [a]; Welch v City of Glen Cove, 273 AD2d 302; Neves v Port Auth., 265 AD2d 393; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937). Accordingly, the Supreme Court providently exercised its discretion in denying the motion.

CPLR 3212(a) permits an extension of the time to move for summary judgment upon a showing of good cause.

Coumbes v. Taylor · filed 2002-10-07(a)

Furthermore, the defendants established good cause for the extension, and the defendant Ford Motor Credit Company filed a meritorious motion well in advance of the anticipated trial date, causing no prejudice to the plaintiffs (see CPLR 3212 [a]; Williams v Nicolaou, 284 AD2d 451; Medina v Barbaro, 279 AD2d 615; Zwecker v Clinch, 279 AD2d 572).

A party seeking summary judgment after an inordinate delay must show good cause for the delay.

Hilton v. City of New Rochelle · filed 2002-10-07(a)

The Supreme Court improvidently exercised its discretion in entertaining the defendant’s oral application for summary judgment, which was made after jury selection had been completed. The defendant failed to demonstrate good cause for its inordinate delay in seeking summary judgment (see CPLR 3212 [a]; Dono v Bar Biz Rest. & Equip. Corp., 292 AD2d 494; Caiola v Allcity Ins. Co., 277 AD2d 273; Wagner v City of New York, 271 AD2d 439; Scocozza v Tolia, 262 AD2d 548).

A summary judgment motion made within the applicable 120 days after the note of issue is timely under CPLR 3212 (a).

Basulto v. Gravely International, Inc. · filed 2002-10-24(a)

Finally, there is no merit to Gravely’s untimeliness claim based on an alleged CPLR 3212 (a) violation. The motion was made well within the applicable 120 days of plaintiffs’ filing of the February 23, 2001 note of issue.

CPLR 3212(a) allows a court to deny an extension of time to move for summary judgment under the circumstances of the case.

Mahon v. New York City Health & Hospital Corp. · filed 2003-03-31(a)

Under the circumstances of this case, the Supreme Court properly denied the cross motion by the defendant Brooklyn Hospital Center for an extension of time to move for summary judgment (see Martin Iron & Constr. Co. v Grace Indus., 285 AD2d 494 [2001]; CPLR 3212 [a]).

Section 3212(a) permits a court to deny a belated summary judgment motion as untimely.

Wilhelm Group v. White Plains Flooring & Supplies, Inc. · filed 2003-12-01(a)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendants’ belated motion for summary judgment as untimely (see CPLR 3212 [a]; Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320 [1998]; cf. Chambers v Maury Povich Show, 285 AD2d 440 [2001]).

A summary judgment motion made within 120 days after the filing of a new note of issue is timely under CPLR 3212(a).

Johnson v. Ladin · filed 2005-05-02(a)

Contrary to the Supreme Court’s determination, the defendant’s motion, made well within 120 days after the filing of the new note of issue, was timely (see CPLR 3212 [a]; Alexander v City of New York, 277 AD2d 334 [2000]; Di Rosario v Williams, 276 AD2d 583 [2000]; see also Brill v City of New York, 2 NY3d 648 [2004]).

CPLR 3212(a) requires leave of court on good cause shown to file a summary judgment motion after the applicable deadline; the parties cannot extend that deadline by stipulation alone.

Balcerzak v. DNA Contracting, LLC · filed 2005-08-04(a)

In the instant action, the parties stipulated to allow an extended time period for the making of summary judgment motions, without any application to the court for good cause. The late filings of the two summary judgment motions and the cross motion for summary judgment contravene public policy as set forth in CPLR 3212 (a) and Kings County Supreme Court Uniform Civil Term rule 13.

Section 3212(a) requires good cause for a summary judgment motion filed after a court-imposed deadline, even when that deadline is shorter than the statutory 120-day period.

Giudice v. Green 292 Madison, LLC · filed 2008-04-24(a)

Since USADATA’s motion was dated October 24, 2006 and Green’s November 20, 2006, both motions had to be denied as untimely absent good cause shown for the delays (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

CPLR 3212(a) permits denial of an untimely cross motion for summary judgment.

Coates v. Corp. of the PresidIng Bishop · filed 2008-11-18(a)

However, the denial, as untimely, of the plaintiffs cross motion for summary judgment was proper (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]).

Section 3212(a) requires a summary judgment motion filed more than 120 days after the note of issue to be denied unless the movant shows good cause for the delay.

Brown v. New York · filed 2008-12-02(a)

CPLR 3212 (a) provides that a motion for summary judgment must be filed within 120 days of the note of issue unless “good cause” can be shown for the late filing. HD-WC’s motion is untimely, and it has failed to establish the requisite good cause for its delay.

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

Podlaski v. Long Island Paneling Center of Centereach, Inc. · filed 2009-01-27(a)

Since no good cause was articulated by ARG for its late filing, its cross motion for summary judgment was properly denied as untimely (id.; see Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 743 [2007]; Jones v Ricciardelli, 40 AD3d 936 [2007]).

Section 3212(b) permits a court to grant summary judgment to a party whose own motion was untimely when the evidence warrants judgment in that party’s favor.

Guerriero v. Jand · filed 2008-12-18(b)

Although TPM’s motion for summary judgment was untimely, in light of the evidence showing the trivial nature of the defect, the court properly granted summary judgment to TPM pursuant to CPLR 3212 (b) (see Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [2006]).

Parties may, with the court’s consent, stipulate to a summary judgment filing deadline that differs from the procedure in CPLR 3212(a).

Corchado v. City of New York · filed 2009-07-02(a)

We reject Hallen’s argument that CPLR 3212 (a) authorizes a court to set a deadline only for the making, i.e., service, not the filing, of summary judgment motions (see e.g. Corbi v Avenue Woodward Corp., 260 AD2d 255, 255 [1999]) because the parties, with the court’s consent, were free to chart a procedural course that deviated from the path established by the CPLR (see Katz v Robinson Silverman Pearce Aronsohn & Berman, 277 AD2d 70, 73 [2000] [“Parties are afforded great latitude in charting their procedural course through the courts, by stipulation or otherwise” (citations omitted)]).

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

Lance International, Inc. v. First National City Bank · filed 2010-02-19(a)

With respect to defendant’s underlying motion for summary judgment dismissing the complaint on the merits, that motion was untimely (see CPLR 3212 [a]).

A summary judgment motion is timely under CPLR 3212(a) when the movant completes the required filing steps within the court-set time limit.

Gallagher v. County of Nassau · filed 2010-06-08(a)

Contrary to the plaintiffs contention, the motion of the defendants Town of North Hempstead, Department of Parks and Recreation of the Town of North Hempstead, and Manorhaven Softball League (hereinafter collectively the Town defendants) for summary judgment dismissing the complaint insofar as asserted against them was timely under CPLR 3212 (a) (cf. Brill v City of New York, 2 NY3d 648 [2004]). The Town defendants submitted ample evidence, including a date-stamped copy of the notice of motion and the affidavit of the legal intern who filed the motion papers, to demonstrate that they completed all of the requisite filing steps within the time limit set by the Supreme Court.

The 120-day limit for a summary judgment motion applies even when a case is later stricken from the trial calendar, if the limit had already expired.

Valentin v. MTA/New York City Transit Authority · filed 2013-07-02(a)

Contrary to plaintiffs contention, the 120-day limit imposed by CPLR 3212 (a) applies to cases that have been stricken from the trial calendar, at least where, as here, the 120-day period had expired before the case was struck from the calendar (see Rivera v City of New York, 73 AD3d 413 [1st Dept 2010], citing Brill v City of New York, 2 NY3d 648 [2004]).

When the court sets no deadline, CPLR 3212(a) requires a summary judgment motion within 120 days after the note of issue is filed, unless the movant shows good cause for a late filing.

O'BRIEN, COLLEEN v. BAINBRIDGE, LARRY J. · filed 2013-09-27(a)

Thus, pursuant to CPLR 3212 (a), the deadline for filing motions for summary judgment was August 31, 2010. The motion at issue in this appeal, i.e., the second motion, was filed on March 21, 2012, more than 18 months after the deadline, and we agree with the court that defendants failed to show good cause for the substantial delay.

An untimely summary judgment motion should not be considered when the movant offers no excuse for the delay.

Perez v. City of New York · filed 2013-10-09(a)

With regard to that branch of the City’s motion which was for summary judgment, it was untimely made and the Supreme Court improvidently exercised its discretion in considering that branch, since the City failed to offer any excuse for its failure to timely move for summary judgment (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]; Ofman v Ginsberg, 89 AD3d 908, 909 [2011]; Brewi-Bijoux v City of New York, 73 AD3d 1112, 1113 [2010]).

CPLR 3212(a) requires a summary judgment motion to be served within 120 days after the note of issue is filed; a motion served later may be denied when the movant offers no explanation for the delay.

Mary Hsiao Yung Wang v. Chei Fong Lee · filed 2013-10-30(a)

The Supreme Court properly denied the appellant’s untimely motion for summary judgment in view of her failure to offer any explanation for not serving the motion within 120 days after the filing of the note of issue, as required by CPLR 3212 (a) (see Brill v City of New York, 2 NY3d 648 [2004]; Soltes v 260 Waverly Owners, Inc., 42 AD3d 565 [2007]).

Section 3212(a) permits a court to consider a summary judgment motion filed after its deadline when the motion seeks relief nearly identical to a timely motion.

Gubenko v. City of New York · filed 2013-11-14(a)

Although defendants’ motions were made after the 60-day time limit set by the motion court for summary judgment motions (CPLR 3212 [a]), the court properly considered the motions because they sought relief nearly identical to that sought in third-party and fourth-party defendants Felix Equities, Inc.’s and Nico Asphalt Paving, Inc.’s timely motions (see Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]; see also Conklin v Triborough Bridge & Tunnel Auth., 49 AD3d 320, 321 [1st Dept 2008]).

Section 3212(a) does not bar the filing of a summary judgment motion after the note of issue and certificate of readiness have been vacated.

MARTINEZ, CIPRIANA v. MURDOCK, WILLIAM T. · filed 2013-11-15(a)

In light of our determination in appeal No. 1 that the note of issue and certificate of readiness was properly vacated, there is no bar to the continuance of discovery (see generally Furrukh v Forest Hills Hosp., 107 AD3d 668, 669), or to the filing of “dispositive motions” by defendants (see generally CPLR 3212 [a]).

CPLR 3212(a) requires a late summary judgment movant to show good cause for the delay before the motion may be considered.

Kershaw v. Hospital for Special Surgery · filed 2013-12-24(a)

Brill draws a bright line based on the two elements of CPLR 3212 (a): the statutorily-imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered.

Section 3212(a) permits denial of a late summary judgment motion when the movant gives no reasonable explanation for the delay.

Mejia v. Ramos · filed 2014-01-09(a)

The motion court properly denied plaintiffs’ motion for partial summary judgment as untimely (CPLR 3212 [a]; see Brill v City of New York, 2 NY3d 648, 652 [2004]). Plaintiffs failed to offer a reasonable explanation to the motion court as to why the motion was filed 181 days after the filing of the note of issue.

Section 3212(a) permits a court to set a deadline for summary judgment motions; otherwise, a motion must be made within 120 days after the note of issue is filed unless the court grants leave for good cause.

McDowell & Walker, Inc. v. Micha · filed 2014-01-23(a)

Supreme Court did not err in denying plaintiff’s motion as untimely. A court may set a date after which no summary judgment motion may be made and, if no such date is set, the motion 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]).

A renewed summary judgment motion may be untimely under CPLR 3212(a).

Torres v. Zara Realty Holding Corp. · filed 2014-01-28(a)

By that time, the motion was untimely under any view of the facts (see CPLR 3212 [a]).

CPLR 3212(a) requires a party moving for summary judgment after the deadline to show good cause for the delay.

Rodriguez v. Sol Goldman Investments, LLC · filed 2014-03-05(a)

The motion was untimely and Core 3 failed to demonstrate good cause for the delay (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]).

Section 3212(a) requires good cause to consider a summary judgment motion made more than 120 days after the filing of a notice of trial; the opposing party’s failure to object does not supply good cause.

Exceptional Medical Care, P.C. v. Fiduciary Insurance · filed 2014-03-21(a)

To the extent plaintiffs contend that defendant never objected to their cross motion as untimely, we conclude that the absence of an objection does not constitute good cause to consider an otherwise untimely motion. As noted, the 120-day time limit specified in CPLR 3212 (a) is strict and serves to eliminate the “sloppy practice” of late summary judgment motions and promote “a habit of compliance with the statutory deadlines” for such motions (Brill v City of New York, 2 NY3d at 653-654).

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

Amill v. Lawrence Ruben Co. · filed 2014-05-01(a)

Four Little failed to establish good cause to make its second summary judgment motion more than 120 days after the note of issue was filed (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 128-129 [2000]; CPLR 3212 [a]).

A summary judgment motion whose filing deadline falls on a Saturday may be filed on the next business day.

Vazquez v. Flesor · filed 2015-05-13(a)

Here, the last day to make the motion for summary judgment fell on a Saturday. Accordingly, the defendant was permitted to file the motion “on the next succeeding business day” (General Construction Law § 25-a [1]; see CPLR 3212 [a]; Rodriguez v Board of Educ. of City of Yonkers, 301 AD2d 641 [2003]). Therefore, the defendant’s motion, which was made the following Monday, was timely.

CPLR 3212(a) permits denial of a summary judgment motion filed after the assigned judge’s deadline when the movant offers no explanation for the delay.

Chmielowiec v. Blackwood · filed 2016-11-01(a)

Since appellants provided no explanation for filing their motion for summary judgment outside the time period set by the rules of the assigned IAS judge, the motion court did not improvidently exercise its discretion in denying the motion as untimely (see Fine v One Bryant Park, LLC, 84 AD3d 436 [1st Dept 2011]; see also CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Section 3212(a) permits a court to set a summary judgment filing deadline; a motion filed after that deadline requires good cause, even if filed within 120 days of the note of issue.

Appleyard v. Tigges · filed 2019-04-16(a)

Defendants' argument that good cause was demonstrated by their having filed the motions within 120 days after the filing of the note of issue fails in light of their failure to comply with the court's own deadline ( see Giudice v Green 292 Madison, LLC , 50 AD3d 506, 506 [1st Dept 2008] [good cause not found where the parties failed to file their summary judgment motions by the court-imposed deadline, even if they were filed within the statutory 120-day period]).

CPLR 3212(a) permits denial of an untimely cross motion for summary judgment.

Jones v. Town of Carroll · filed 2021-08-26(a)

Even assuming, arguendo, that defendants have not abandoned on appeal any challenge to those determinations, we conclude that the court properly denied defendants' cross motion for summary judgment as untimely under CPLR 3212 (a) ( see Lozzi v Fuller Rd. Mgt. Corp. , 175 AD3d 1815, 1816 [4th Dept 2019]; Mitchell v City of Geneva , 158 AD3d 1169, 1169 [4th Dept 2018]; see generally Brill v City of New York , 2 NY3d 648, 650-654 [2004]) and as an improper successive motion [*2]for summary judgment ( see Magic Circle Films Intl., LLC v Breon , 192 AD3d 1610, 1611-1612 [4th Dept 2021]; Vinar v Litman , 110 AD3d 867, 868-869 [2d Dept 2013]).

Section 3212(c) does not entitle a defendant to a framed-issue hearing on whether a physician-patient relationship existed or a consultation was appropriate.

Rojas v. McDonald · filed 1999-12-21(c)

Nor is there merit to defendant’s argument that there should be a ffamed-issue hearing under CPLR 3212 (c) on whether the parties were in a physician/patient relationship and whether defendant “rendered an appropriate consultation” (see, Farkas v Saary, 191 AD2d 178).

Section 3212(c) permits a hearing when the evidence warrants resolving factual issues on a summary judgment motion.

Shanley v. Crisafulli · filed 2002-03-15(c)

There is sufficient evidence to warrant a hearing under CPLR 3212 (c) with respect to whether plaintiff Gerard H. Shanley and Daniel Crisafulli (defendant), as the only members of plaintiff Westside Development, LLC (Westside), had a confidential relationship; whether Shanley expended money for the improvement of the landlocked property at issue when he expended money toward the purchase of surrounding properties to enhance the value of the landlocked property; and whether the money was expended by Shanley in reliance on defendant’s promise to convey the landlocked property to Westside.

Section 3212(c) permits a hearing to determine value after partial summary judgment establishes liability.

Constitution Realty, LLC v. Oltarsh · filed 2003-10-30(c)

While plaintiff has established that the conveyance of goodwill was fraudulent within the meaning of Debtor and Creditor Law § 273-a, a hearing is necessary to determine its value (CPLR 3212 [c]).

Section 3212(b) permits a hearing on framed issues when the record is insufficient to resolve them on summary judgment.

Sterngass v. Town Board of Clarkstown · filed 2004-08-09(b)

Ordered that the matter is remitted to the Supreme Court, Rockland County, for a hearing pursuant to CPLR 3212 (b) on the framed issues of whether the rezoning of the property from MF-3 to MF-1 was barred by estoppel and/or bad faith.

Section 3212(c) permits a court to hold a hearing on a factual issue raised by a summary judgment motion.

M.V.B. Collision Inc. v. Allstate Insurance · filed 2009-06-10(c)

The court further determines that a prompt hearing of the issues raised on the motion is appropriate for the expeditious disposition of the controversy. (See CPLR 3212 [c].) Accordingly, a hearing shall be held on July 27, 2009, limited to the issue of champerty.

CPLR 3212(c) allows a court to decline an immediate hearing on past defense costs when the requesting party does not explain why one is needed.

1515 Broadway Fee Owner, LLC v. Seneca Insurance · filed 2011-12-06(c)

Because plaintiffs failed to address why an immediate hearing was required to determine past defense costs pursuant to CPLR 3212 (c), the motion court did not improvidently exercise its discretion in declining to grant such a request.

Section 3212(h) sets a special proof standard for summary judgment motions against SLAPP suits, but the court declined to apply that standard to a federal summary judgment motion governed by Rule 56.

Yeshiva Chofetz Chaim Radin, Inc. v. Village of New Hempstead · filed 2000-04-12(h)

Rule 3212(h), which applies to summary judgment motions, states that motions to dismiss or for summary judgment made under those rules, when brought against SLAPP suits, shall be granted unless the responding party demonstrates that its action or claim “has a substantial basis in fact or law” or is supported by “a substantial argument for an extension, modification or reversal of existing law.” ... In the absence of any such argument by defendants, I conclude that there is no basis for applying the proof requirements of the CPLR to a summary judgment motion in this federal court.

CPLR 3212 supplies New York's summary judgment standard, but a federal bankruptcy court applies the federal standard instead.

In Re WorldCom, Inc. · filed 2007-08-21

While the parties’ pleadings utilize the New York standard for summary judgment, as a result of the Debtors’ Chapter 11 cases, this matter is moving forward in a federal forum. The Court will therefore apply the federal summary judgment standard in this proceeding.

Section 3212's summary judgment standard does not apply in federal diversity cases, where Rule 56 governs.

All Am. Tel. Co. v. AT & T Corp. · filed 2018-09-10

However, CPLR § 3212 and the New York case authority interpreting and applying that standard do not apply.

CPLR § 3212 does not govern summary judgment motions in federal diversity cases; Federal Rule of Civil Procedure 56 governs.

Reynoso v. Tousson · filed 2019-09-13

As an initial matter, both parties contend that this Court should apply New York state procedural law: Tousson argues that N.Y. C.P.L.R. § 3213 applies, (Def. Mem. at 3), and Reynoso confusingly argues that N.Y. C.P.L.R. § 3212 applies but that the Court “should consider” the standard under Federal Rule of Civil Procedure 56, (Pl. Opp’n § 7). ... Because the summary judgment standard is procedural, Rule 56 alone governs.

CPLR 3212’s summary judgment standards do not apply in federal actions; Rule 56 governs.

Woods v. Town of Tonawanda · filed 2020-04-08

Thus, CPLR 3212 and its standards for proof are not applicable in this federal action.

Section 3212(h) requires the party opposing a special anti-SLAPP summary judgment motion to show a substantial basis for the claim, a burden that conflicts with Federal Rule of Civil Procedure 56.

The National Academy of Television Arts and Sciences, Inc. v. Multimedia System Design, Inc. · filed 2021-07-30(h)

The law’s provisions similarly conflict with Federal Rule of Civil Procedure 56(a). Rule 56(a) permits summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law;” the anti-SLAPP law reverses the burden and requires the plaintiff to prove “a substantial basis in fact and law” for the claim.

A summary judgment movant cannot raise a new ground for the motion for the first time in reply papers.

Watt v. Irish · filed 2000-04-24

The court, however, cannot properly entertain defendants’ motion for summary judgment on the breach of contract claim since defendants effectively made the motion for the first time in their reply papers. Arguments advanced for the first time in reply papers are entitled to no consideration by a court entertaining a summary judgment motion.

A summary judgment movant cannot cure a fundamental deficiency in its moving papers by submitting evidence with its reply.

TrizecHahn, Inc. v. Timbil Chiller Maintenance Corp. · filed 2012-02-02(b)

Moreover, although Timbil submitted, in reply, affidavits from two servicemen who said they performed an overspeed trip test on November 8, 2000, a movant may not “remedy a fundamental deficiency in the moving papers by submitting evidentiary material with the reply” (Ford v Weishaus, 86 AD3d 421, 422 [2011] [internal quotation marks and citation omitted]).

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

Way v. Grantling · filed 2001-12-20(b)

As a threshold matter, we reject the contention that, because plaintiff was precluded from bringing a direct action against third-party defendant and had no interest in the outcome of the third-party action, he lacked standing to submit evidence in opposition to third-party defendant’s summary judgment motion. CPLR 3212 (b) specifically provides that “the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact” (emphasis supplied). Under the circumstances, we are unpersuaded that Supreme Court erred in considering the evidence submitted by plaintiff.

Section 3212(b) permits summary judgment based on the opposing party’s submissions even when the movant fails to establish an initial entitlement to judgment.

Waldron v. Wagner Hill Ltd. · filed 2002-03-15(b)

Although defendant failed to meet its initial burden of establishing its entitlement to judgment as a matter of law, we nevertheless affirm the order granting the cross motion “because the submissions made in connection with * * * plaintifffs’] * * * motion for summary judgment conclusively establish” that the complaint has no merit (George v Hunt [appeal No. 1], 289 AD2d 935, 935; see, CPLR 3212 [b]).

Section 3212 requires a party opposing a supported summary judgment motion to offer evidence sufficient to raise a triable issue of fact.

Kardas v. Union Carbide Corp. · filed 2004-03-25

Nor, in the face of IBM's evidence that it did not sell any of the causation chemicals as to which plaintiff seeks to cast it in liability, has plaintiff met her summary judgment motion burden by coming forth with any evidence sufficient to raise an issue of fact requiring a trial of this claim against IBM ( see , generally , Zuckerman v. City of New York , 49 N.Y.2d 557,562 [1980]). On this basis alone, IBM is entitled to summary judgment dismissing plaintiff's breach of warranty cause of action.

Under section 3212(b), an opposing expert affidavit can rebut a movant’s initial showing and defeat summary judgment.

Williams v. City of White Plains · filed 2004-04-19(b)

In any event, the affidavit of the plaintiffs engineering expert rebutted the appellant’s initial showing that it did not create the alleged defect (see CPLR 3212 [b]).

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

Zervos v. City of New York · filed 2004-06-14(b)

In opposition to the defendants’ prima facie showing of entitlement to summary judgment (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; see also Russin v Picciano & Son, supra; Lopes v Interstate Concrete, supra; Kehoe v Segal, supra), the plaintiffs failed to raise a triable issue of fact.

Under CPLR 3212 (b), conclusory evidence is insufficient to raise an issue of fact on a summary judgment motion.

13315 Owners Corp. v. Kennedy · filed 2004-06-29(b)

Conclusory evidence is insufficient to raise an issue of fact under CPLR 3212 (b) about whether respondent was unfairly denied his right to be heard.

An opposing affidavit from a person with knowledge of the facts can raise a triable issue of fact and defeat summary judgment.

Rackis v. Adelman · filed 2005-07-18(b)

In any event, the defendant’s affidavit ... submitted in opposition to the motion constituted sufficient proof by a person having knowledge of the facts to raise a triable issue of fact with respect to the terms of an oral agreement allegedly entered into by the parties (see CPLR 3212 [b]; DeLeonardis v Brown, 15 AD3d 525 [2005]; Harbor Seafood v Quality Fish Co., 194 AD2d 713 [1993]).

Under CPLR 3212(b), evidence opposing a properly supported summary judgment motion must raise a triable issue of fact.

McKenzie v. County of Westchester · filed 2007-03-27(b)

The evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Indig v Finkelstein, 23 NY2d 728, 729 [1968]).

Section 3212(b) requires the party opposing summary judgment to show a factual issue requiring a trial once the movant has met its burden.

Antenozzi v. Village of Spencerport · filed 2009-11-09(b)

The burden now shifts to the plaintiff to demonstrate evidence sufficient to establish an issue of fact requiring a trial (CPLR 3212 [b]). The plaintiff does not submit any evidence or argue that there is a question of fact on whether written notice was provided, and does not raise an issue of fact on any exceptions to the written notice requirement.

Section 3212 requires a party opposing a supported summary judgment motion to show facts sufficient to require a trial.

Village of Valatie v. Town of Kinderhook · filed 2013-09-30

Thus, to defeat defendant’s motion for summary judgment, plaintiff is tasked with the burden of demonstrating the existence of “facts sufficient to require a trial” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) — which the court finds that plaintiff has utterly failed to do (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

Section 3212 requires a party opposing a supported summary judgment motion to produce admissible evidence of a material factual question requiring trial.

Delgado v. Martinez Family Auto · filed 2014-01-09(b)

The burden then shifted to Delacruz to produce evidentiary proof in admissible form that there are material questions of fact sufficient to require a trial.

CPLR 3212 (f) does not excuse a party opposing summary judgment from presenting proof because the expert disclosure deadline has not passed.

Leeder v. Antonucci · filed 2021-06-17(f)

The fact that the deadline in the court's scheduling order for disclosure of expert witnesses had not yet passed did not relieve plaintiff of his burden to "lay bare his proof and show that a genuine question of fact exists" in opposition to the cross motion for summary judgment ( Oot v Home Ins. Co. of Ind. , 244 AD2d 62, 71 [4th Dept 1998]; see also CPLR 3212 [f]).

Section 3212 permits summary judgment despite a right to a jury trial when no triable issue of fact exists.

In re a Subsequent Retention Order in Relation to Watkins R. · filed 2003-01-17(a)

It is precisely for that reason that CPLR 3212 permits the court to dispense with a jury trial when no issue of fact exists.

Section 3212(c) permits a trial of damages issues remaining after summary judgment, but does not allow the court to change the fact finder otherwise required.

Caplan v. Tofel · filed 2006-10-17(c)

However, this statutory provision “ ‘does not vest discretion in the court to require the trial of such issues of fact before any type of fact finder other than would be required were there no motion for summary judgment’ ” ... Therefore, the plaintiff was entitled to a jury trial on the issue of damages if that right was not waived (cf. Cogen v Robin Klinger Children’s Entertainment, 17 AD3d 619, 620-621 [2005]).

CPLR 3212(g) permits summary judgment on an innocent passenger’s lack of fault even when the defendant drivers dispute their comparative negligence.

Romain v. City of New York · filed 2019-11-06(g)

The right of an innocent passenger to summary judgment on the [*2]issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers ( see CPLR 3212[g]; Jung v Glover , 169 AD3d 782, 783; Phillip v D & D Carting Co., Inc. , 136 AD3d 18, 24-25; Anzel v Pistorino , 105 AD3d 784, 786; Medina v Rodriguez , 92 AD3d 850, 850; Garcia v Tri-County Ambulette Serv. , 282 AD2d 206, 207; Silberman v Surrey Cadillac Limousine Serv. , 109 AD2d 833, 833-834).

Section 3212(g) allows an innocent passenger to obtain summary judgment on her own lack of fault even when comparative negligence between the drivers remains disputed.

Pinilla v. New York City Transit Authority · filed 2014-11-12(g)

The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212 [g]; Anzel v Pistorino, 105 AD3d 784, 786 [2013]; Medina v Rodriguez, 92 AD3d 850 [2012]; Garcia v Tri-County Ambulette Serv., 282 AD2d 206, 207 [2001]; Johnson v Phillips, 261 AD2d 269, 272 [1999]; Silberman v Surrey Cadillac Limousine Serv., 109 AD2d 833, 833-834 [1985]; see also Conigliaro v Premier Poultry, Inc., 67 AD3d 954, 955 [2009]).

Section 3212(i) permits summary judgment on a design claim against an engineering firm when there is no substantial basis to believe the firm designed the structure.

Estate of Hamzavi v. Dewberry-Goodkind, Inc. · filed 2005-12-08(i)

Plaintiffs claim that defendant failed to design a proper guide rail at the location of plaintiffs decedent’s accident was properly dismissed for lack of a substantial basis to believe that the guide rail was designed by defendant (CPLR 3212 [i]).

CPLR 3212(b) does not permit summary judgment against a defendant who has defaulted in answering.

Peters v. Smolian · filed 2015-06-25(b)

In light of all of the above, the court denies the motion to the extent asserted against defendant, Richard J. Smolian, who failed to appear herein by answer, as the remedy of summary judgment is not available against a defendant in default of answering (see CPLR 3212 [b]).

Section 3212(b) permits a summary judgment decision issued after trial begins when the decision is based on the papers and proof submitted on the motion.

Madden v. Dake · filed 2006-06-29(b)

While it is not clear when the note of issue was filed (see CPLR 3212 [a]; see also Brill v City of New York, 2 NY3d 648 [2004]), the court clearly based its ... written decision on “the papers and proof submitted” on the motion (CPLR 3212 [b]), and there is no support for defendants’ assertion that the court’s ruling was influenced by the trial proceedings.

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

Enriquez v. Home Lawn Care & Landscaping, Inc. · filed 2008-03-04(a)

Finally, that branch of Egloff s motion which was for summary judgment dismissing the complaint insofar as asserted against him was properly denied as premature, since the motion was made prior to the joinder of issue by Egloff (see CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92,101 [1985]; Sonny Boy Realty, Inc. v City of New York, 8 AD3d 171 [2004], affd 4 NY3d 858 [2005]; Chakir v Dime Sav. Bank of N.Y., 234 AD2d 577, 578 [1996]).

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

Vanguard Construction & Development Co. v. Polsky · filed 2009-05-01(a)

Contrary to plaintiffs argument, the motion for summary judgment by defendants Polsky and Chukwulozie is not untimely. A party may bring a motion for summary judgment after joinder of issue (CPLR 3212 [a]), and a motion to dismiss for failure to state a cause of action can be made at any time.

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

Reyes v. Arco Wentworth Management Corp. · filed 2011-03-15(a)

Arco separately moved for summary judgment dismissing the complaint. The Supreme Court denied the motion on the ground that since issue had not yet been joined between Arco and the plaintiff, the motion was premature (see CPLR 3212 [a]). Furthermore, the Supreme Court declined to treat what was in actuality a pre-answer motion to dismiss as a motion for summary judgment. We affirm the Supreme Court’s determination (see CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]; Shaibani v Soraya, 71 AD3d 1121 [2010]).

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

Drezin v. New Yankee Stadium Community Benefits Fund, Inc. · filed 2012-04-12(a)

Finally, plaintiffs motion for summary judgment was premature since issue had not yet been joined (see CPLR 3212 [a]).

Section 3212(a) bars a summary judgment motion before issue is joined, and courts strictly enforce that requirement.

Gaskin v. Harris · filed 2012-09-12(a)

“A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). Here, the plaintiff moved, in effect, for summary judgment simultaneously with her commencement of this action, and, thus, before issue could be joined.

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

Pilatich v. Town of New Baltimore · filed 2012-11-21(a)

Defendants’ motion was made before issue was joined by the service of an answer (see CPLR 3212 [a]; Berle v Buckley, 57 AD3d 1276, 1277-1278 *1250 [2008]).

A motion for summary judgment is premature before the moving party has filed an answer.

1234 Broadway LLC v. Caroline K. · filed 2015-01-23(a)

That branch of Ms. K.’s motion seeking summary judgment is denied without prejudice. Without an answer, the motion is premature.

CPLR 3212 generally bars a summary judgment motion before issue is joined; the parties may nevertheless deliberately chart a summary judgment course.

HARRISON, DAWN v. SAMARITAN MEDICAL CENTER · filed 2015-05-08(a)

Initially, we agree with plaintiff that defendant’s request for summary judgment was premature.

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

Blue Island Development, LLC v. Town of Hempstead · filed 2015-08-12(a)

Here, the Town had not yet answered the petition/complaint and, therefore, the Supreme Court properly denied the cross motion as premature (see Gaskin v Harris, 98 AD3d at 942).

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

Stone Column Trading House Ltd. v. Beogradska Banka A.D. in Bankruptcy · filed 2016-05-24(a)

The motion court correctly determined that Stone Column’s motion for summary judgment was premature because it served the motion prior to joinder of issue (CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]).

Section 3212(a) does not permit a summary judgment motion before the defendant has served an answer.

DeVries v. Jim Duffy, LLC · filed 2016-09-14(a)

Civil Court should not have entertained, much less granted plaintiffs' cross motion for summary judgment. The defendants had not yet served an answer ( see CPLR 3212[a]; City of Rochester v Chiarella , 65 NY2d 92, 101 [1985]).

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

Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc. · filed 2017-05-04(a)

However, summary judgment is unavailable at this juncture since issue has not yet been joined (CPLR 3212 [a]), and the Court has not treated Rampart's motion to dismiss as one for summary judgment ( see CPLR 3211 [c]).

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

Brawer v. Lepor · filed 2020-11-12(a)

The court also correctly denied plaintiff's cross motion for partial summary judgment on that claim because issue had not yet been joined (CPLR 3212[a]).

Section 3212(b) permits the court to consider an insurance policy attached to an attorney’s affirmation when the policy is admissible and the relevant facts are undisputed.

Wider v. Heritage Maintenance, Inc. · filed 2007-01-03(b)

Therefore, the court declines to strike Paramount’s motion papers, and will consider the facts (as presented by Wider in the complaint) and the contract attached to Paramount’s attorney’s affirmation.

Section 3212(b) requires a summary judgment motion to be supported by evidence with probative value; an attorney’s affirmation without personal knowledge does not suffice.

Allen v. Allstate Insurance · filed 2010-11-16(b)

In this regard, the affirmation of counsel submitted in support of the motion lacked probative value because it was not based on personal knowledge (see CPLR 3212 [b]; Shickler v Cary, 59 AD3d 700 [2009]; Noel v L & M Holding Corp., 35 AD3d 681 [2006]).

On a summary judgment motion, an attorney’s affirmation has no probative value unless it rests on personal knowledge or is supported by documentary evidence.

Banigo v. Board of Education of Roosevelt Union Free School District · filed 2013-04-15

It is well settled that an attorney’s affirmation that is not based on personal knowledge or supported by documentary evidence is of no probative value. ... Here, the attorneys do not profess to possess personal knowledge of any facts asserted, hence, their affirmations have been employed and considered only to the extent they are utilized as vehicles to refer to other competent evidence.

Under CPLR 3212(b), an attorney’s affirmation standing alone is insufficient to raise a triable issue of fact in opposition to summary judgment.

Gallo v. Jairath · filed 2014-11-19(b)

As the plaintiff correctly contends, the affirmation of counsel for the Jairath defendants, standing alone, is insufficient to raise a triable issue of fact (see CPLR 3212 [b]; Roche v Hearst Corp., 53 NY2d 767, 769 [1981]; see also Rotuba Extruders v Ceppos, 46 NY2d 223, 229 [1978]).

An attorney affirmation lacking personal knowledge has no probative value in support of a summary judgment motion.

Roemer v. Allstate Indem. Ins. Co. · filed 2018-07-19(b)

Although defendant submitted the affirmation of its counsel in support of its motion, said affirmation was not based on counsel's personal knowledge and, therefore, it lacked any probative value ( see CPLR 3212 [b]; Hill v Country Club Acres, Inc. , 134 AD3d 1267, 1268 [2015]) as to whether defendant's conduct in investigating and ultimately delaying its denial of coverage constituted bad faith.

Under CPLR 3212(b), an attorney's affirmation may be insufficient to raise a triable issue of fact in opposition to summary judgment.

Colini v. Stino, Inc. · filed 2020-09-30(b)

Moreover, in opposition to the defendant's prima facie showing, the affirmation of the plaintiff's attorney was insufficient to raise a triable issue of fact ( see CPLR 3212[b]; Yong Dong Liu v Lowe , 173 AD3d 946, 947; Han Hao Huang v "John Doe" , 169 AD3d 1014, 1016).

CPLR 3212(f) permits further disclosure before summary judgment, but a party waives that ground by filing a note of issue and certificate of readiness stating that disclosure is complete.

Melcher v. City of New York · filed 2007-03-22(f)

In opposition, plaintiff invoked CPLR 3212 (f), which, under certain circumstances, allows a court to deny a motion for summary judgment to permit a party opposing the motion to obtain further disclosure. Plaintiff, however, waived her right to further disclosure when she filed her note of issue and certificate of readiness, which stated both that disclosure was complete and that there were no outstanding disclosure requests (see Escourse v City of New York, 27 AD3d 319 [2006]; Malloy v Madison Forty-Five Co., 13 AD3d 55 [2004]; see also Matuszak v B.R.K. Brands, Inc., 23 AD3d 628 [2005]; Joseph v City of Buffalo, 187 AD2d 946 [1992], affd on other grounds 83 NY2d 141 [1994]).