N.Y. C.P.L.R. § 3212

CPLR 3212(a) permits a summary judgment motion at any time after issue has been joined, including on the eve of trial.

Crandall v. Waldbaum, Inc. · filed 1987-04-20(a)

Contrary to the plaintiffs’ contentions, the defendant’s motion for summary judgment was not untimely so as to require its denial, even though it was made on the eve of trial, since the motion was clearly meritorious and, under CPLR 3212 (a), it could be made at any time after issue had been joined (see, Kule Resources v Reliance Group, 49 NY2d 587; Carvel Corp. v Burstein, 99 AD2d 935, affd 62 NY2d 638).

CPLR 3212 does not permit a court to grant summary judgment on an issue when no summary judgment motion seeking that relief was served.

Phoenix Enterprises Ltd. Partnership v. Insurance Co. of North America · filed 1987-05-19

Inasmuch as no summary judgment motion was served under CPLR 3212, and INA did not seek such relief in its papers, as required under CPLR 2214 and 2215, it was error for Special Term to do so here (see, Double A Limousine Serv. v New York, N. Y. Limousine Serv., 130 AD2d 403; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943; Andriano v Caronia, 117 AD2d 640, 642-643).

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

Peloke v. Scheid · filed 1987-05-26(b)

To obtain summary judgment, it is necessary that movant establish his cause of action " 'sufficiently to warrant the court as a matter of law in directing judgment’ ” in his favor (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; CPLR 3212 [b]).

Section 3212(b) permits summary judgment when no triable issue of fact remains and the movant is entitled to judgment as a matter of law.

La Torella v. Hallissey · filed 1987-06-29(b)

Accordingly, the court properly determined that the causes of action set forth in the plaintiff’s complaint presented no triable issue of fact, and defendant was entitled to judgment as a matter of law (see, CPLR 3212 [b]; Andre v Pomeroy, 35 NY2d 361, 364; Hellyer v Law Capitol, 124 AD2d 782).

CPLR 3212 does not permit summary judgment when significant factual issues remain.

Bulatao v. Posada · filed 1987-03-26

Due to the ambiguity of the contract entered into between the parties on July 1, 1983, significant factual issues exist which would preclude dismissal of the complaint pursuant to CPLR 3211 (a) (1) or (7) or CPLR 3212.

CPLR 3212 does not permit summary judgment when factual issues require a trial.

Barsh v. Town of Union · filed 1987-04-02

Issues of fact are also presented which require a trial of the action (see, Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Section 3212 does not permit summary judgment when factual questions about settlement notice and reasonableness remain.

North River Insurance v. Spain Oil Corp. · filed 1987-04-23

This, as well as the reasonableness of the settlement, is a question of fact which entitles no one to judgment on these papers (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).

Section 3212(b) permits denial of summary judgment when affidavits opposing the motion raise triable questions of fact.

Bank of New York v. Hyland · filed 1987-05-22(b)

The court properly denied plaintiff’s motion for summary judgment. By their affidavits and that of their accountant, defendants made a sufficient showing in opposition to the motion to raise triable questions of fact on the validity of their defenses to notes (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

CPLR 3212(a) ordinarily makes summary judgment premature before an answer, but the court may grant it when the decisive fact is conceded and the legal issue has been fully briefed.

Association of Messenger Services, Inc. v. City of New York · filed 1987-09-08(a)

Ordinarily, since defendants have not formally answered the complaint, consideration of the grant of summary judgment would be inappropriate (CPLR 3212 [a]). In fact, here summary relief has not even been requested. However, the only factual finding necessary for plaintiffs to establish the invalidity of the Order is that defendants failed to comply with the publication and notice requirements of section 1105. Since this is acknowledged, and the parties have fully briefed the issue as to whether compliance was necessary, there is no practical reason to delay the grant of summary judgment.

Section 3212(b) permits summary judgment when the movant establishes its claim as a matter of law and the opposing party raises no issue of fact requiring trial.

Doyle Detective Bureau, Inc. v. Bommattei · filed 1987-11-10(b)

Thus, defendant failed to raise an issue of fact requiring a trial, and summary judgment was properly granted to plaintiff.

CPLR 3212 requires a negligence plaintiff seeking summary judgment to establish entitlement to judgment as a matter of law, with favorable inferences given to the opposing party.

Alotta v. City Hospital Center at Elmhurst · filed 1987-11-16

Focusing on issue finding, not issue determination, and according favorable inferences to the party opposing the motion (see, Robinson v Strong Mem. Hosp., 98 AD2d 976), it is clear that the plaintiff has failed to make a showing of entitlement to summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320).

Section 3212(e)'s restriction on reverse summary judgment does not prevent summary judgment declaring a marriage void when no judicial declaration is needed to end the marriage.

Rashkov v. Rashkov · filed 1987-11-25(e)

The prohibition against reverse summary judgment is not relevant particularly in view of the fact a judicial declaration is not even a prerequisite to the termination of the relationship of these parties as husband and wife.

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

Burnside Coal & Oil Co. v. City of New York · filed 1987-12-10(b)

As the contract terms are clear in specifying how the gross receipts tax was to be incorporated in the bid and in specifying that the tax may not be passed on to the city as a separate item, defendant city has submitted sufficient proof to establish, as a matter of law, that judgment should be entered in its favor, and we so direct. (See, CPLR 3212 [b].)

Section 3212(a) makes a summary judgment motion premature before a complaint has been served.

Woodworth v. Woodworth · filed 1987-12-18(a)

This motion was premature because no complaint had been served (see, CPLR 3212 [a]; ...).

Section 3212 requires the court to determine whether the parties’ evidence shows a material factual issue; conclusory or speculative assertions do not suffice.

Marshall-Schule Associates, Inc. v. Goldman · filed 1987-12-21

As a rule, in determining a motion for summary judgment, the court’s function is limited to the ascertainment of the existence of any issues of material fact in the proofs laid bare by the parties’ submissions of affidavits based on personal knowledge and documentary evidence, rather than in their conclusory or speculative averments.

Section 3212 does not permit summary judgment when a factual issue must be resolved at trial.

Tigue v. E. R. Squibb & Sons, Inc. · filed 1987-07-16

Whether the request for approval of DES for use in pregnancy relied upon the earlier filings presents an issue of fact which cannot be determined on a motion for summary judgment.

CPLR 3212 requires denial of summary judgment when factual disputes must be resolved at trial.

Carpenter v. Miller · filed 1987-07-23

We reach a similar conclusion with respect to defendant’s CPLR 3212 motion for summary judgment. The affidavits and testimony reveal significant differences as to whether defendant placed the car in parking gear or neutral and how far behind the other vehicle defendant’s car was located when she got out and went into the building. Moreover, Connolly’s explanation that the vehicle spontaneously shot forward raises the spectre of a mechanical problem. These factual issues must be resolved at trial before it is possible to determine whether defendant breached any duty owed to plaintiff and whether that breach was the proximate cause of plaintiffs injuries (see, Havas v Victory Paper Stock Co., 49 NY2d 381).

Section 3212 precludes summary judgment when a factual issue must be resolved at trial.

Robinson v. Jewish Hospital & Medical Center · filed 1987-07-27

In my view, Dr. Aziz’s motion should be denied because there are issues of fact which preclude a grant of summary judgment in favor of either party.

Section 3212 precludes summary judgment when disputed facts prevent the movant from establishing entitlement to judgment as a matter of law.

Schroders, Inc. v. Hogan Systems, Inc. · filed 1987-10-26

Several key factual issues are disputed by the parties, precluding summary judgment.

Section 3212 requires denial of summary judgment when factual issues must be resolved at trial.

Green v. Fischbein · filed 1987-12-10

Indeed, the proof indicates that there may be considerable merit to plaintiff’s assertion that defendants endeavored to attack his tenancy, and it was, therefore, error to grant the motion for partial summary judgment.

Summary judgment must be denied when the evidence raises an issue of fact that cannot be resolved on the motion.

Kardis v. Lennon · filed 1987-12-14

Under these circumstances, an issue of fact was raised, which cannot be resolved on this record, as to whether the promissory notes executed by the defendant were given to the plaintiff’s intestate in exchange for a loan or loans made by the plaintiff’s intestate to the defendant in the amounts reflected in the checks. Accordingly, the defendant’s renewed motion for summary judgment should have been denied.

CPLR 3212(b) permits summary judgment without a trial when the facts cannot establish liability.

Daniel v. Dow Jones & Co. · filed 1987-10-13(b)

No trial is needed, however, where the facts do not, and cannot, create liability.

CPLR 3212 (b) permits summary judgment when there are no triable issues of material fact.

Board of Education v. Port Jefferson Union Free School District · filed 1987-11-09(b)

A review of the record reveals that the Supreme Court, Suffolk County, properly found no triable issues of material fact, thereby entitling the plaintiff to summary judgment (see, CPLR 3212 [b]; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338).

Summary judgment is proper when the evidence leaves no issue of fact for trial.

Caris v. Mele · filed 1987-11-23

Based upon the evidentiary materials before the court, no issue of fact remains for the trier of fact and, therefore, the complaint was properly dismissed (see, Maddox v City of New York, 66 NY2d 270; Hoffman v Silbert, 19 NY2d 661).

Section 3212 permits summary judgment when no factual question remains and only an issue of law must be decided.

Hertz Corp. v. Corcoran · filed 1987-09-22

As the only issue is one of statutory interpretation, and there is no question of fact or factual interpretation, summary judgment is therefore appropriate as only questions of law are involved.

Section 3212 permits summary judgment when an undisputed failure to satisfy a contractual condition precedent bars the claim, even if the defendant’s alleged negligence remains unresolved.

Parent Teacher Ass'n v. Manufacturers Hanover Trust Co. · filed 1988-01-14

It neither excuses PTA from its contractual obligations nor bars summary judgment where there is no factual dispute as to the fulfillment of the condition precedent and period of limitation.

Under CPLR 3212(b), a defendant seeking summary judgment must establish as a matter of law that the plaintiff’s claim has no merit.

Tambaro v. City of New York · filed 1988-05-02(b)

In order for the defendants to obtain summary judgment, it is necessary for them to establish, as a matter of law, that the plaintiffs’ cause of action has no merit (CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum, Sales, 66 NY2d 965, 967).

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

Delpopolo v. Zanghi · filed 1988-05-27(a)

Special Term properly denied plaintiff’s cross motion for summary judgment, however, since that motion, made prior to joinder of issue, was premature (see CPLR 3212 [a]; Grossman v Laurence Handprints, 90 AD2d 95, 98; Monroe Abstract & Tit. Corp. v Giallombardo, 54 AD2d 1084, 1085).

Section 3212(b) requires a party opposing a supported summary judgment motion to show facts requiring a trial through admissible evidence or an acceptable excuse for not producing it.

DeLuca v. Wahl · filed 1988-05-27(b)

Once plaintiff met his initial burden of showing entitlement to summary judgment, it was incumbent upon defendant to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]) by producing evidentiary proof in admissible form or by demonstrating an acceptable excuse for his failure to meet the strict requirement of tender in admissible form (Zuckerman v City of New York, supra, at 562).

Section 3212(b) requires a trial when material issues of fact remain.

Golaszewski v. Cadman Plaza North, Inc. · filed 1988-01-19(b)

In addition, there were other issues of material fact which required a trial (CPLR 3212 [b]; Warren v Arena Assocs., 109 AD2d 738, 739), including whether 1 of the 2 guardrails actually came loose, since both rails were in place the next day, and whether rope alone was an improper means to attach the guardrails, which would require expert testimony to establish.

Section 3212 requires denial of summary judgment when the submissions raise triable issues of fact.

Palen v. Ford Motor Co. · filed 1988-01-21

Since the submissions raise triable issues of fact with respect to defendant Ford’s liability, plaintiffs’ motion for summary judgment is denied. (CPLR 3212.)

Section 3212 permits partial summary judgment where liability is established as a matter of law, while claims involving a genuine issue of material fact require trial.

Downstate Medical Center v. Purolator Courier Corp. · filed 1988-01-25

At this point there is a genuine issue of material fact which must be resolved by a trial. ... The motion for summary judgment is denied in all respects with regard to the claims of recklessness or gross negligence.

CPLR 3212 requires denial of summary judgment when affidavits raise factual issues requiring trial.

Gandler v. Rosado · filed 1988-02-01

Petitioners move for summary judgment pursuant to CPLR 3212 to dismiss the defenses interposed by respondent. ... At the outset it should be noted that the affidavit submitted by the respondent setting forth defenses of retaliatory eviction and breach of warranty of habitability present issues of fact requiring a trial. ... Accordingly, the motion for summary judgment is denied.

Summary judgment is unavailable when triable issues of fact exist.

Coyle v. Newman · filed 1988-02-08

Our examination of the record discloses that there exist triable issues of fact precluding the granting of summary judgment.

Section 3212 does not permit summary judgment when triable issues of fact remain.

M.G. Sales, Inc. v. Chemical Bank · filed 1988-02-11

Nevertheless, M.G. Sales and Chemical Bank again urged legal insufficiency, albeit in pleadings styling this request, which was before a different Judge, as one for summary judgment pursuant to CPLR 3212. We reject this renewed challenge to legal sufficiency, and reverse on the ground that this action presents triable issues of fact.

Section 3212(b) permits summary judgment only when there is no triable issue of fact; the evidence must be viewed in the light most favorable to the opposing party.

Scaturro v. Moret · filed 1988-02-29(b)

Furthermore, in determining a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, and the motion "should not be granted where there is any doubt as to the existence of triable issues” (Dal Constr. Corp. v City of New York, 108 AD2d 892, 894).

Section 3212 requires denial of summary judgment when the record leaves a factual question about responsibility for the alleged injury.

Nilsen v. City of New York · filed 1988-03-21

Indeed, there is a question of fact with regard to this issue which cannot be resolved on the documents submitted at the Supreme Court. Accordingly, since the record does not conclusively establish, as between the defendants, the responsibility for the maintenance and repair of the subject stairway, that branch of the City’s motion which was to dismiss the cross claims asserted against it by SIRTOA and NYCTA should have been denied.

Summary judgment is unwarranted when a triable issue of fact remains.

Pokoik v. Department of Health Services · filed 1988-03-21(b)

The court erred in granting summary judgment to the respondents pursuant to CPLR 3212 (b). ... Finally, we conclude that summary judgment in favor of the petitioner is also unwarranted. ... An issue of fact remains as to whether a toilet facility which is "conveniently accessible” to ocean bathers ... may be constructed on village property at a location outside of the Federal dune district.

Under CPLR 3212(b), conflicting allegations and insufficient proof on a material issue require a trial.

130-164 Ravine Avenue Inc. v. Ravine Associates · filed 1988-04-25(b)

The seller demonstrated that there are sharply divergent allegations concerning the materiality of the representation and a dearth of proof with respect to it, requiring a trial (CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when a party shows facts requiring a trial on an issue of fact, subject to the exception in subsection (c).

Koslov v. New York City Housing Authority · filed 1988-05-23(b)

CPLR 3212 (b) provides that a motion for summary judgment shall be denied if any party shall show facts sufficient to require a trial on any issue of fact except where, as provided by CPLR 3212 (c), the only triable issues of fact relate to the amount or extent of damages or other issues not pertinent here.

CPLR 3212 requires the court to search the record for triable issues of fact before granting summary judgment.

Kern v. DePaul Mental Health Services, Inc. · filed 1988-05-27

For purposes of this motion, however, it is incumbent upon the court to search the record for triable issues of fact which would preclude the granting of summary judgment (CPLR 3212).

Section 3212 requires summary judgment when the court determines that there is no cause of action.

Kilcommons v. City of New York · filed 1988-02-26

Summary judgment is mandated upon ascertaining that there is no cause of action (Senrow Concessions v Shelton Props., 10 NY2d 320, 326).

Section 3212 does not permit summary judgment on a trespass claim when the surveys do not conclusively locate the disputed plantings and fence.

Flatley v. Hartmann · filed 1988-03-07

Since the surveys submitted by each side to this dispute give no indication as to where the allegedly offending trees and shrubs are planted and since those surveys do not demonstrate conclusively where the allegedly offending fence is placed, the Supreme Court properly denied the defendants’ application to dismiss the first cause of action (see, CPLR 3211 [a] [1]; 3212).

Section 3212(b) requires denial of summary judgment when questions of fact exist.

Kliegman v. Gutterman · filed 1988-03-07(b)

Where questions of fact are shown to exist a motion for summary judgment must be denied (CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when questions of fact exist.

Michigan Mutual Insurance v. Kelly · filed 1988-05-23(b)

Where questions of fact exist a motion for summary judgment must be denied (CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when material questions of fact remain.

Clark v. Golden · filed 1988-05-31(b)

We agree with the Supreme Court, Dutchess County, that there are questions of fact presented in this case as to whether time was made of the essence by the parties and whether paragraphs 25 and 27 of the rider to the contract bear on these issues. Accordingly, summary judgment was properly denied (CPLR 3212 [b]).

Section 3212 permits denial of summary judgment when a complete trial record is needed before deciding whether defendants may be exculpated.

Tigue v. E. R. Squibb & Sons, Inc. · filed 1988-04-14

... denying the motions of defendants Rexall, Upjohn and Abbott, pursuant to CPLR 3212, for summary judgment dismissing the plaintiffs’ complaints, unanimously affirmed, without costs. ... However, in view of the fact that the Court of Appeals has, in two instances, left the question of concerted action open, we should now permit a complete trial record to be developed, so that when the matter is finally determined, there will be no question as to the factual details.

Section 3212 permits summary judgment when the facts are undisputed and only legal questions remain.

Art Masters Associates, Ltd. v. United Parcel Service · filed 1988-04-19

The facts are not in dispute in this case; the questions are purely legal ones and may therefore be suitably resolved on a summary judgment motion (CPLR 3212; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212 permits summary judgment when no triable issues of fact remain.

Bentaleb v. Mezoui · filed 1988-05-18

In the absence of any triable issues of fact, the court grants summary judgment in favor of the plaintiff (CPLR 3212).

Section 3212(b) permits summary judgment when the opposing party fails to raise an issue of fact or defense that would preclude it.

Martin Enterprises, Inc. v. Janover · filed 1988-05-23(b)

With respect to the action on the indemnity agreement, the appellants failed to raise an issue of fact or defense so as to preclude summary judgment thereon (see, CPLR 3212 [b]).

Section 3212 permits a defendant to move for summary judgment after the court declines to treat a second motion to dismiss as one for summary judgment.

Reilly v. Prentice · filed 1988-06-06

However, this does not bar the defendant from moving for summary judgment pursuant to CPLR 3212 (see, Rich v Lefkovits, 56 NY2d 276).

Section 3212(b) permits summary judgment when no factual question requires a trial and the cause of action warrants judgment as a matter of law.

State v. County of Suffolk · filed 1988-06-13(b)

Summary judgment is a drastic remedy which may only be granted when there are no questions of fact to be determined at a trial and the cause of action is "established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” (CPLR 3212 [b].) We are here dealing only with a question of law. No facts are in dispute.

Under CPLR 3212, unsupported speculation does not raise a factual issue sufficient to defeat summary judgment.

Hunter v. Annexstein · filed 1988-06-28

As for the matter of the trust fund, the claim by Annexstein that Kim may be either dead or incompetent is nothing more than speculation totally unsupported by any factual evidence and, therefore, is entirely inadequate to raise an issue of fact such as would defeat a motion for summary judgment.

CPLR 3212(b) permits summary judgment for a defendant whose established defense warrants judgment as a matter of law.

Wilson v. Woodward Builders, Inc. · filed 1988-07-07(b)

Gardner, which installed the electrical system in plaintiff’s home in June 1977, established its defense 'sufficiently to warrant the court as a matter of law in directing judgment’ in its favor (CPLR 3212 [b]; Iselin & Co. v Mann Judd Landau, 71 NY2d 420)”

CPLR 3212(b) requires a summary judgment movant to establish a claim and the absence of valid defenses as a matter of law; the opponent must present evidence of facts requiring a trial.

Board of Trustees v. Romano · filed 1988-07-18(b)

In order for the plaintiff to obtain summary judgment, it was required to establish, as a matter of law, that one or more of its claims has merit and that there are no valid defenses to them (CPLR 3212 [b]). Conversely, in order for the defendants to successfully oppose the motion, they are required to demonstrate the existence of a valid defense by evidence establishing "facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]). The Supreme Court properly concluded upon the record presented that the plaintiff established, as a matter of law, that the subject structure was a boathouse, and the defendants failed to raise a material triable question of fact with respect to this issue.

Section 3212(b) permits summary judgment when no factual issue requires a trial and a defense is sufficiently established as a matter of law.

Schlueter v. Shawnee Operating Co. · filed 1988-08-25(b)

In the absence of any claim that Shawnee’s installation of the pipeline across the plaintiff’s land was unnecessary or unreasonable, it is the opinion of the court that there is no issue of fact requiring a trial and that, as a matter of law, the defense has been sufficiently established to warrant the granting of summary judgment in Shawnee’s favor against the plaintiff (CPLR 3212 [b]).

Section 3212 requires a summary judgment movant to establish entitlement to judgment as a matter of law and the opposing party to show facts requiring a trial.

Vierling v. West Chemical Products, Inc. · filed 1988-10-17

To succeed on a motion for summary judgment, the proponent must establish the cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor. To defeat the motion, the adverse party must show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages (CPLR 3212).

Section 3212 permits summary judgment when the opposing party fails to raise a triable issue of fact necessary to its claim.

DeVizio v. Hobart Corp. · filed 1988-07-07

Since plaintiff has failed to raise an issue of fact regarding the existence of constructive notice or a statutory violation, defendant Nestmark is entitled to summary judgment (see, Putnam v Stout, 38 NY2d 607; Fischer v Battery Bldg. Maintenance Co., 135 AD2d 378; Silver v Brodsky, 112 AD2d 213).

Section 3212 does not permit summary judgment when conflicting affidavits raise triable issues of fact.

In re Rambusch · filed 1988-10-27

Whether the dismissal by the IAS court be deemed one as dismissal pursuant to CPLR 404 or as summary judgment pursuant to CPLR 3212, the court erred in making factual determinations where triable issues of fact were raised by the conflicting affidavits (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275 [with regard to motion to dismiss]; Cohen v Herbal Concepts, 100 AD2d 175, 177, affd 63 NY2d 379 [on motion for summary judgment]).

Section 3212(b) permits summary judgment only when judgment can be directed as a matter of law; a disputed material fact must be resolved at trial.

Ritta Personnel, Inc. v. Capoccia · filed 1988-10-27(b)

... summary judgment motion, which can only be properly granted when judgment can be directed as a matter of law (see, CPLR 3212 [b]; Winegrad v New York Univ. Med. Center, supra, at 853). The facts and circumstances in the case at bar are uncertain, disputed and raise a question of fact as to whether a contract existed.

Section 3212 does not permit summary judgment on cross motions when a factual question about a bank’s actual knowledge of a trust-fund diversion remains.

Ben Soep Co. v. Highgate Hall of Orange County, Inc. · filed 1988-12-14

The court has concluded that there are sufficient circumstantial facts, from which a trier of fact could conclude that the bank had actual knowledge of the diversion of trust funds. However, this is a question of fact, which cannot be resolved on the cross motions for summary judgment.

Section 3212 permits partial summary judgment; when a motion expressly requests that relief and the opposing papers show awareness of it, the court need not give additional notice.

Bauch v. Verrilli · filed 1989-01-05

Each defendant’s notice of motion specifically requested partial summary judgment pursuant to CPLR 3212. Moreover, plaintiffs’ responding papers demonstrate that they were fully aware of the nature of the relief sought by defendants. Therefore, in our view, no additional notice by the court was necessary.

Section 3212 permits summary judgment in a plenary action after a court denies relief under CPLR 3213 because the instrument is not for the payment of money only.

Technical Tape, Inc. v. Spray-Tuck, Inc. · filed 1989-01-19

The prior ruling of this court was, as appellants maintained, directed solely to the threshold issue of whether appellants could avail themselves of the summary proceedings under CPLR 3213. It did not preclude them from seeking summary judgment in a plenary action pursuant to CPLR 3212.

Section 3212(b) permits summary judgment when the movant's evidence warrants judgment and the opponent fails to raise a triable issue of fact.

Sinicropi v. Town of Indian Lake · filed 1989-03-02(b)

The showing here by defendant constituted clear and convincing evidence sufficient to warrant the court to direct judgment in its favor (CPLR 3212 [b]); inasmuch as plaintiff has failed to rebut such evidence sufficient to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562), summary judgment was proper.

CPLR 3212(b) permits summary judgment when the moving party shows entitlement to relief as a matter of law and the opposing party fails to produce evidence raising a triable issue of fact.

Board of Managers of the First Avenue Condominium v. Shandel · filed 1989-04-06(b)

Even so, if the moving party is able to show that they are entitled to the relief requested as a matter of law, and evidence sufficient to raise a triable issue of fact is not produced by the opposing party the motion may be granted. (CPLR 3212 [b]; Spearmon v Times Sq. Stores Corp., 96 AD2d 552 [2d Dept 1983].)

Section 3212(b) permits summary judgment only when a party establishes its claim or defense as a matter of law.

Interboro General Hospital v. Allcity Insurance · filed 1989-04-17(b)

With respect to the seventh cause of action, in which the plaintiff’s insurance claim was supported by a proper proof of claim, i.e., a completed hospital facility form, neither party has established its cause or defense as a matter of law so as to entitle it to summary judgment (see, CPLR 3212 [b]).

Section 3212(b) requires denial of summary judgment when neither side establishes entitlement to judgment as a matter of law.

Basile v. Flood · filed 1989-05-01(b)

Since neither the plaintiff nor the defendants have established their respective claims sufficiently to warrant this court to direct judgment in their favor as a matter of law, we must deny the applications for summary judgment of both the plaintiff and the defendants (see, CPLR 3212 [b]; see also, Zuckerman v City of New York, 49 NY2d 557, 562).

Summary judgment must be denied when unresolved material issues of fact prevent judgment as a matter of law.

Museums at Stony Brook v. Village of Patchogue Fire Department · filed 1989-01-09

By order entered April 4, 1988, the Supreme Court properly denied the plaintiff’s motion for summary judgment concluding that the existence of various unresolved issues of fact precluded the rendering of judgment in the plaintiff’s favor as a matter of law.

Section 3212 requires denial of summary judgment when opposing affidavits raise a sufficient issue of fact.

Sichel v. Central Federal Savings & Loan Ass'n · filed 1989-02-22

Further, the opposing affidavits of the bank officers and employees have raised a sufficient issue of fact as to someone other than plaintiff having had access to the box, to warrant denial of the motion for summary judgment.

Section 3212(b) permits summary judgment when the proof establishes a claim as a matter of law, but requires denial when factual issues need trial.

Munzer v. St. Paul Fire & Marine Insurance · filed 1989-02-23(b)

Accordingly, summary judgment must be denied as to all issues raised by the pleadings except defense of the actions.

Section 3212 requires denial of summary judgment when the evidence raises a material factual dispute about whether a claim is time barred.

Gandhi v. Nayak · filed 1989-03-28

Based upon the documents, described supra, which indicate that defendant Mr. Nayak, as secretary of defendant Rainbow, stated that, as of December 26, 1979, plaintiff was a stockholder of defendant Rainbow, and that there was more than one stockholder of defendant Rainbow, we find there is a material triable issue of fact concerning whether the breach occurred on November 28, 1979, when defendant Mr. Nayak claims he caused defendant Rainbow to issue all of its stock to him, or sometime after December 26, 1979, when the defendants rejected plaintiff’s demands to be issued 50% of defendant Rainbow’s stock, and to be afforded an opportunity to examine the corporate and financial records of defendant Rainbow. ... Accordingly, we reverse, deny the motion, and reinstate the complaint.

Under CPLR 3212(a), summary judgment is improper when genuine factual disputes require credibility determinations.

Calabrese v. Childs · filed 1989-04-17(a)

We find that the Supreme Court correctly held that there exist many triable issues of fact with respect to the plaintiff’s claims of fraud and the defendants’ assertions that the employment contract is illusory (see, CPLR 3212 [a]). The determination of such factual issues would require the resolution of questions of credibility which is not proper on a summary judgment motion unless it clearly appears that the issues are "not genuine, but feigned” (see, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441).

Section 3212(b) calls for summary judgment when no factual issue requires resolution by a jury.

Hartford Insurance v. Nationwide Mutual Insurance · filed 1989-05-03(b)

The test on a motion for summary judgment is to ascertain whether there are issues of fact properly to be resolved by a jury (CPLR 3212 [b]). ... Accordingly, the plaintiff Hartford’s motion for summary judgment is denied and the defendant Nationwide’s cross motion for summary judgment is granted.

CPLR 3212 permits summary judgment when the material facts are undisputed and the remaining issue can be decided as a matter of law.

Simons v. Blue Cross & Blue Shield · filed 1989-01-10

An examination of the record herein clearly demonstrates that there is no disagreement over the actual treatment administered to Amy but, rather, whether that treatment is primarily medical in nature, as plaintiff claims, or constitutes psychiatric care, as defendant urges. ... Consequently, the order of the Supreme Court, New York County (David H. Edwards, Jr., J.), entered on February 3, 1988, which denied plaintiff’s motion for summary judgment pursuant to CPLR 3212, should be reversed, on the law, and the motion for summary judgment granted, with costs and disbursements.

Section 3212 permits summary judgment when the pleadings present no factual issue about whether conduct was intentional or negligent.

Dykes v. Valentino · filed 1989-02-14

Contrary to plaintiff’s contention, the pleadings presented no factual issues as to whether the altercation involved intentional or negligent conduct (CPLR 3212).

Section 3212 permits summary judgment when factual disputes cannot affect the legal outcome.

Rizk v. Cohen · filed 1989-02-16

Finally, although plaintiff strenuously argues that summary judgment is inappropriate because of the clear dispute in the facts, we conclude there are no legally dispositive facts in dispute concerning the application of the continuous treatment doctrine (see, CPLR 3212).

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

Holtz v. Niagara Mohawk Power Corp. · filed 1989-02-23(b)

Furthermore, summary judgment will be denied "if any party shall, show facts sufficient to require a trial” (CPLR 3212 [b]). Here, NiMo failed to demonstrate its entitlement to judgment as a matter of law, even if it is accepted that plaintiff failed to present the necessary evidence to show the existence of triable issues of fact. Additionally, NiMo’s motion was opposed by the Taylors and the evidence they presented sufficiently showed that factual issues existed.

Section 3212 precludes summary judgment when evidence raises a factual question about agency and contractual privity.

R. H. Sanbar Projects, Inc. v. Gruzen Partnership · filed 1989-03-07

Even if this motion is considered one for summary judgment, whether an agency relationship existed with respect to Birnbaum’s contract and whether or not Birnbaum had knowledge of DHT’s interest in the project and/or direct contact with DHT so as to establish a sufficient nexus between them are questions of fact which require further discovery.

Section 3212(b) precludes summary judgment when factual issues remain for trial.

In re the Estate of Katz · filed 1989-03-17(b)

The presence of the factual issues discussed above precludes summary judgment (CPLR 3212 [b]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, supra).

Section 3212(b) requires a party opposing summary judgment to set forth facts sufficient to require a trial.

Mascoli v. Mascoli · filed 1989-04-10(b)

Once again, we find that the defendant has failed to set forth facts sufficient to require a trial (see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065) and reject the defendant’s contentions as totally lacking merit.

Section 3212(b) permits summary judgment on liability when no issues of fact or meritorious defenses remain.

Yiouti Restaurant, Inc. v. Sotiriou · filed 1989-06-26(b)

...tion was entitled to summary judgment on the issue of liability since there are no issues of fact to be determined and no meritorious defenses (CPLR 3212 [b]; Peoples Natl. Bank v Weiner, 129 AD2d 782).

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

Breidenstein v. Zurn Industries, Inc. · filed 1989-11-15(b)

Thus, on this motion, defendants failed to sustain their burden of showing that plaintiff’s cause of action has no merit (see, CPLR 3212 [b]) because they failed to establish, by uncontroverted evidence, that the belly bar, had it not been removed from the machine, would have prevented the accident.

Section 3212(b) permits summary judgment when defendants sufficiently establish a defense entitling them to judgment as a matter of law.

Amble v. City of New York · filed 1990-01-16(b)

Based upon the foregoing, we conclude that Carlton Gardens Housing Co., Inc., and Two Trees, Inc., sufficiently established their defense so as to warrant the entry of a judgment in their favor as a matter of law (see, CPLR 3212 [b]; Farkas v Cedarhurst Natural Food Shoppe, 51 AD2d 793).

CPLR 3212 permits summary judgment when there is no triable issue of fact.

Super v. Lux · filed 1990-03-01

Summary judgment was properly granted on the ground that there are no triable issue of fact. (CPLR 3212.)

A CPLR 3212 summary judgment motion will not lie before the defendant answers, but the court may convert a CPLR 3211 motion to summary judgment when the parties have notice and an opportunity to present evidence.

Watkins v. New York State Ethics Commission · filed 1990-03-21

... CPLR 3212 will not lie where, as here, the defendant has not interposed an answer, nevertheless, the court has the prerogative to convert the motion to dismiss under CPLR 3211 to a motion for summary judgment, and there being no issues of fact herein — only considerations of law — the court elects to treat the CPLR 3211 motion as a motion for summary judgment. Sufficient notice and the opportunity to present further evidence was given to all parties.

Section 3212 permits summary judgment when no factual issues require a trial.

Lunning v. 10 Bleecker Street Owners Corp. · filed 1990-04-03

We find that Special Term correctly granted summary judgment. There are no factual issues which require a trial.

CPLR 3212 requires summary judgment when the movant establishes that no genuine issue of material fact remains and the opposing party fails to show a factual issue requiring trial.

Friedman v. Pesach · filed 1990-04-17

It is axiomatic that where there are no genuine issues of material fact, summary judgment must be granted.

Section 3212 permits summary judgment when there are no material issues of fact; the court determines whether issues exist rather than resolving them.

Harris v. Hirsh · filed 1990-05-22

Summary judgment dismissing a complaint, while a drastic remedy, is properly granted where there are no material issues of fact.

Section 3212(b) requires a summary judgment movant to submit admissible evidence sufficient to establish entitlement to judgment.

Dominguez v. Werner Machine Co. · filed 1990-06-28(b)

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

CPLR 3212 permits summary judgment when the movant establishes entitlement as a matter of law and the opponent fails to show a triable issue of fact.

Hladik v. Conlon · filed 1990-07-12

In our view, the proof submitted by the town on its motion was sufficient to entitle it to summary judgment as a matter of law (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562). ... It then became defendants’ burden, as third-party plaintiffs opposing the motion, to demonstrate the existence of triable issues of fact (see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967-968; Zuckerman v City of New York, supra, at 562).

CPLR 3212 summary judgment standards govern a motion for final judgment in a civil forfeiture action.

Morgenthau v. Citisource, Inc. · filed 1990-07-24

As it is a civil action (CPLR 1311 [1]) a motion for judgment must be judged by the standards of any motion for summary judgment in a civil action (see, e.g., CPLR 3212, 3213, 3211 [c]); that is, that "there is no substantial fact issue in the case and therefor no necessity for a trial” (Siegel, NY Prac § 278, at 333).

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

Piecyk v. Otis Elevator Co. · filed 1990-08-23

Order of Supreme Court, Bronx County (Barry Salman, J.), entered June 12, 1989, which denied defendant’s motion, pursuant to CPLR 3212, for summary judgment dismissing plaintiff’s complaint, is unanimously affirmed, without costs.

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

Sevenson Environmental Services, Inc. v. New York State Thruway Authority · filed 1990-10-17(b)

To obtain summary judgment, it is necessary for claimant to establish its cause of action "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]). We find and conclude that claimant has done so. There is no dispute that the money withheld was due claimant pursuant to the contract. The withholding of this money by the Authority was unauthorized, as found by the court; therefore, no issue of fact remains to be determined.

CPLR 3212(b) permits summary judgment when the moving party establishes that judgment in its favor is warranted as a matter of law.

Koagel v. Ryan Homes, Inc. · filed 1990-11-16(b)

We conclude, therefore, that defendants established their defense "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]).

Section 3212 supplies the summary judgment procedure and standard of review when a dismissal motion is converted after the movant submits extrinsic evidence.

Michael v. Ametelco, Inc. · filed 1991-02-14

As plaintiffs correctly pointed out and anticipated in their answering papers, the defendants’ introduction of extrinsic evidence requires the motion to be considered as one for summary judgment (CPLR 3212) rather than for dismissal (CPLR 3211 [c]). ... Accordingly, this application is converted to a motion for summary judgment and the court is guided by the attendant standard of review.

Under CPLR 3212, conclusory assertions and speculation in opposition do not defeat summary judgment.

Kotzapigikogloy v. Seventy Ninth Associates · filed 1991-02-21

The third-party plaintiffs’ opposition to the motion consists only of conclusory assertions, speculation, conjecture and surmise to the effect that the light fixture was improperly designed by Westinghouse (see, Smith v Johnson Prods. Co., 95 AD2d 675). Accordingly, the motion for summary judgment was properly granted.

Under CPLR 3212(b), summary judgment is appropriate when no factual issue requires jury resolution; a lease ambiguity that can be resolved without extrinsic evidence is a question of law.

Siebel v. McGrady · filed 1991-02-28(b)

At the same time the test on a motion for summary judgment is whether there are issues of fact properly to be resolved by a jury (CPLR 3212, subd. [b]).

A party cannot defeat summary judgment under CPLR 3212 with general, conclusory, and unsubstantiated allegations.

US 7 Inc. v. Transamerica Insurance · filed 1991-05-16

Since it is axiomatic that summary judgment cannot be avoided on the basis of general, conclusory and unsubstantiated allegations, plaintiff is entitled to summary judgment in its favor.

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

Vaskoski v. Campbell · filed 1991-06-07(b)

Doyle had the burden of tendering evidentiary proof in admissible form establishing that it should have judgment as a matter of law ... That burden was not met.

Section 3212 permits summary judgment only when no material issues of fact remain.

Mendez v. HRH Construction Co. · filed 1991-12-04

To grant summary judgment, it must appear that there are no material issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).

Section 3212(b) requires denial of summary judgment when a material issue of fact remains for trial, including unresolved liability on an indemnification cross claim.

Lilienfeld v. Becker · filed 1992-01-14(b)

In this case there is one glaring undecided material issue of fact which prevents the granting of summary judgment. The defendant-cross claimants’ liability has not been determined. This motion is, therefore, not ripe for adjudication and will not be until it is determined, if it ever is, that the cross claimants-movants are liable for this money.

Section 3212(b) permits summary judgment when the moving party submits proof sufficient to warrant judgment as a matter of law.

Environmental Products & Services Inc. v. Briar Contracting Corp. · filed 1992-07-14(b)

The record established that plaintiff submitted proof sufficient "to warrant the court as a matter of law in directing judgment in [its] favor” (CPLR 3212 [b]).

Section 3212(b) permits summary judgment when the submitted proof shows no factual issue requiring trial and establishes a party’s entitlement to judgment as a matter of law.

Helping Out People Everywhere v. Deich · filed 1992-09-28(b)

On a motion for summary judgment pursuant to CPLR 3212 the question before the court is whether there are facts sufficient to require a trial of any issue of fact or in the alternative, whether the cause of action or defense is established sufficiently, based on all the papers and proof submitted, to warrant the court, as a matter of law, to direct judgment in favor of any party.

CPLR 3212(b) permits summary judgment when the movant demonstrates a defense warranting judgment as a matter of law and the opposing party fails to show facts requiring a trial.

Toarmino v. Raab · filed 1993-06-01(b)

In response to the appellants’ motion for summary judgment, the plaintiff failed to "show facts sufficient to require a trial of any issue of fact”, and the appellants have demonstrated a defense sufficient to warrant judgment in their favor ... as a matter of law (see, CPLR 3212 [b]).

CPLR 3212 requires a summary judgment movant to present evidentiary facts warranting judgment as a matter of law.

Sherland & Farrington, Inc. v. Meaney · filed 1993-06-22

In this action alleging failure to procure insurance coverage, defendant-insurer did not meet its burden of setting forth evidentiary facts warranting dismissal as a matter of law, as the affidavit of codefendant’s president and defendant-appellant’s letter of April 24, 1985 presented issues of fact as to whether codefendant-broker was empowered to act as the insurer’s agent to bind the coverage herein.

Section 3212 permits summary judgment when the movant demonstrates the absence of a material issue of fact.

Hambel v. Bohemia Fire Department · filed 1993-06-23

This extraordinary remedy should only be granted when the movant demonstrates the absence of a material issue of fact (Matter of Benincasa v Garrubbo, 141 AD2d 636 [1988]).

Section 3212(b) permits summary judgment when the submitted proof establishes a claim or defense sufficiently for judgment as a matter of law.

Morgan v. Questex Corp. · filed 1993-08-20(b)

A summary judgment motion "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party”. (CPLR 3212 [b].)

CPLR 3212 permits summary judgment when the moving party shows entitlement to judgment as a matter of law and the opposing party raises no triable issue of fact.

Douglas, Payton & Co. v. We're Associates · filed 1993-10-12

The defendant made out a prima facie showing of entitlement to judgment as a matter of law. An examination of the plaintiff’s affidavit in opposition to the defendant’s motion for summary judgment indicates that the plaintiff has not raised any triable issues of fact.

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment as a matter of law; the opposing party must then offer admissible evidence showing a material issue for trial.

Papadopoulos v. Gardner's Village, Inc. · filed 1993-11-01(b)

It is well settled that in order to obtain summary judgment the proponent must establish the cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor (see, CPLR 3212 [b]). In this instance, the defendant, the moving party, met its burden. It then became incumbent upon the plaintiffs to produce evidentiary proof in admissible form sufficient to require a trial of material questions of facts (see, Zuckerman v City of New York, 49 NY2d 557).

Section 3212 permits summary judgment when the opposing party offers only unsupported assertions and raises no material issue of fact.

Parisi Enterprises Inc. Profit Sharing Trust v. Settimo · filed 1993-11-08

Inasmuch as the defendants’ assertions failed to establish the existence of material questions of fact, the Supreme Court properly granted judgment to the plaintiff.

CPLR 3212(b) requires a summary judgment movant to establish an entitlement to judgment as a matter of law; the opposing party must present admissible evidence of a material factual issue requiring trial.

Austin v. McDonald · filed 1993-11-19(b)

In moving for summary judgment, defendant Aspen Square Management Co., Inc. (Aspen Square) was required to establish its defense "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]; see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

Section 3212(b) permits summary judgment when the movant establishes entitlement to judgment and the opposing papers raise no material issue of fact.

Simon v. Maximum Security Brokerage, Inc. · filed 1993-11-29(b)

Accordingly, given the clear and unequivocal language employed by the parties in the subject agreement, the plaintiff’s motion papers established his entitlement to summary judgment in his breach of contract action (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). The defendants’ opposition papers wholly failed to establish the existence of material issues of fact (see, Alvarez v Prospect Hosp., supra). Thus, the plaintiff should have been granted summary judgment in his favor on his complaint.

Section 3212 permits summary judgment when no genuine issue remains for trial and the claim can be resolved as a matter of law.

Aleo International, Ltd. v. Citibank, N. A. · filed 1994-01-10

Defendant Citibank, N. A. (Citibank) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint. ... "Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law * * * [WJhen there is no genuine issue to be resolved at trial, the case should be summarily decided.” (Andre v Pomeroy, 35 NY2d 361, 364.) Accordingly, defendant’s motion is granted and this action is dismissed.

Under CPLR 3212(b), a summary judgment movant must support its motion with admissible evidence, and the opponent must show a factual issue requiring trial.

Lennox Industries, Inc. v. T.M. Bier & Associates, Inc. · filed 1994-02-14(b)

Contrary to the defendant’s contention, the plaintiff satisfied its initial burden of coming forward with admissible evidence to support its motion for summary judgment on an account-stated theory. The defendant, however, failed to demonstrate, by similarly sufficient evidence, the existence of a factual issue requiring a trial of the action. Therefore, the plaintiff’s motion for summary judgment was properly granted (see, CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; Bell-Tronics Communications v Winkler, 178 AD2d 455; Kruger Pulp & Paper Sales v Intact Containers, 100 AD2d 894).

Under CPLR 3212(b), summary judgment is proper when the movant establishes liability and the opposing party raises no genuine issue of fact.

European American Bank v. Abramoff · filed 1994-02-22(b)

Summary judgment was properly granted where, as here, the plaintiff established the decedent’s liability on the note, which on its face was payable on demand. The decedent failed to submit evidence sufficient to raise any genuine issue of fact (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 560; Columbus Trust Co. v Campolo, 110 AD2d 616, affd 66 NY2d 701).

On a summary judgment motion, a prima facie showing shifts the burden to the opposing party to establish a material issue of fact requiring trial.

Tillmon v. New York City Housing Authority · filed 1994-04-05

We find that NYCHA’s submission of affidavits by the supervisor of elevator maintenance and the elevator inspector concerning the safety of the elevator at the time in question and NYCHA’s efforts to prevent "elevator surfing”, along with the evidence recounting the fact that just prior to the incident decedent ignored two warnings of the danger, and, as a 14 year old honor student, should have understood them, and that decedent would have received a youthful delinquent citation for criminal tampering and criminal trespass for his conduct on the elevator, was sufficient to establish, prima facie, that the complaint should be dismissed, and shifted the burden to plaintiff to present sufficient proof to establish material issues of fact requiring a trial.

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

Oasis Music, Inc. v. 900 U.S.A., Inc. · filed 1994-04-28

To obtain summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Section 3212(b) permits summary judgment when the papers establish a claim or defense sufficiently to warrant judgment as a matter of law.

Curry v. Baisley Park Associates · filed 1994-07-29(b)

A summary judgment "motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” (CPLR 3212 [b].) ... Defendant Baisley’s motion for summary judgment dismissing plaintiff’s complaint is granted and defendant Falcon’s cross motion is also granted.

Section 3212 requires a summary judgment movant to show entitlement to judgment as a matter of law; the opposing party must offer admissible evidence of a material factual dispute.

Granser v. Box Tree South Ltd. · filed 1994-11-15

In order to obtain summary judgment, the movant must establish its defense or cause of action sufficiently to warrant a court in directing judgment in its favor as a matter of law. ... The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests.

CPLR 3212 permits summary judgment when no genuine triable issue of material fact exists and the movant is entitled to judgment as a matter of law.

Miller v. Rochester Firefighters Ass'n · filed 1994-12-02

Summary judgment is appropriate when no genuine triable issue of material fact exists between the parties and the movant is entitled to judgment as a matter of law (CPLR 3212; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

CPLR 3212(b) warrants summary judgment when no triable issue of fact remains and judgment is warranted as a matter of law.

Slavin v. Hamm · filed 1994-12-29(b)

There being no triable issue of fact raised by plaintiffs, judgment in favor of Shaul Realty is warranted as a matter of law (see, Ugarriza v Schmieder, 46 NY2d 471, 474; see also, CPLR 3212 [b]).

Section 3212(b) permits summary judgment when the moving party establishes its claim or defense sufficiently to warrant judgment as a matter of law.

Hancock v. City of New York · filed 1994-12-29(b)

Summary judgment is appropriate where the moving party shows that the cause of action or defense is established sufficiently so as to require that the court direct judgment in favor of a party as a matter of law.

Section 3212(f) permits denial of summary judgment when the opposing party has not had an opportunity to discover information exclusively held by the movant.

Moores v. City of Newburgh School District · filed 1995-03-20(f)

Since the plaintiffs have not had the opportunity to conduct discovery of information in the exclusive possession of the defendant, summary judgment should have been denied (see, CPLR 3212 [f|).

Summary judgment under CPLR 3212 is improper when the record is insufficiently developed.

Board of Managers v. Carol Management, Inc. · filed 1995-04-13

In any event, the grant of summary judgment was improper on the record as developed so far.

Section 3212 permits summary judgment for a defendant when the record reveals no connection between that defendant and the plaintiff’s injury.

Manson v. Consolidated Edison Co. · filed 1995-10-31

Since the record failed to reveal any connection whatsoever between the defendant-appellant and the trench into which plaintiff fell, the cross motion for summary judgment should have been granted.

Section 3212 requires a summary judgment movant to establish that no material issue of fact exists.

Kaczmarek v. Conroy · filed 1995-12-07

As the movants for summary judgment, respondents had the burden of establishing that no material issue of fact exists (see, Zuckerman v City of New York, 49 NY2d 557, 562; see also, CPLR 3212) ... We thus conclude that respondents have met their burden of proof in establishing as a matter of law that their action in adopting the resolution was for budgetary reasons, a legislative function to which the doctrine of absolute legislative immunity applies.

Summary judgment may be denied as premature when the plaintiff’s examination before trial has not yet occurred.

Sweetland v. Malone · filed 1996-01-08

We further agree with the Supreme Court that summary judgment is premature as an examination before trial of the plaintiff has not yet occurred.

Under CPLR 3212(b), a defendant’s denials can satisfy the initial burden for summary judgment, but factual questions raised in opposition can defeat the motion.

Wright v. Eger · filed 1996-02-08(b)

While defendant’s denials of the substance of plaintiff’s claims satisfy his initial burden on this motion for summary judgment (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562), plaintiff’s opposition papers raise questions of fact sufficient to withstand a motion for summary judgment (see, ibid.).

A prior order permitting an amended cause of action does not bar a CPLR 3212 motion challenging it; the summary judgment standard governs the motion.

Goldberg v. Plaza Nursing Home Comp., Inc. · filed 1995-12-22

We reject the contentions of plaintiff that defendant is attempting to challenge the prima facie sufficiency of that cause of action and that it is foreclosed from doing so because the issue was resolved in plaintiff’s favor when the court, by prior order, permitted plaintiff to amend her complaint to allege that cause of action. Defendant moved for summary judgment pursuant to CPLR 3212 and the standard applicable thereto governs the resolution of this motion (see, Zuckerman v City of New York, 49 NY2d 557, 562; Baskin & Sears v Lyons, 188 AD2d 307).

CPLR 3212 permits summary judgment when the moving party makes a prima facie showing of entitlement to judgment as a matter of law and the opposing party fails to show a material issue of fact.

Edgar v. Jorling · filed 1996-03-25

Pursuant to 6 NYCRR 622.12 (d) (6 NYCRR former 622.10 [c]), a motion for a summary order may be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to grant summary judgment under CPLR 3212. Here, the DEC submitted sufficient evidence demonstrating that the petitioners violated various provisions of 6 NYCRR part 360 and the special conditions of the DEC-issued solid waste management facility permits. The petitioners’ papers in opposition failed to establish the existence of any material issue of fact which would require a hearing. Accordingly, the DEC satisfied the prima facie showing required to warrant judgment in its favor as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(f) permits denial of summary judgment as premature when substantial discovery remains outstanding.

Brown v. County of Nassau · filed 1996-04-15(f)

We agree with the plaintiff that the award of summary judgment in favor of the respondents was premature under the circumstances of this case, inasmuch as substantial discovery in the action remains outstanding (see, CPLR 3212 [f]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Yu v Forero, 184 AD2d 506; Efdey Elec. Contrs. v Melita, 167 AD2d 501; Smith v City of New York, 133 AD2d 818).

Section 3212(b) requires the movant to establish its claim with admissible proof and show that no material issue of fact remains.

Town of Brookhaven v. FPD Tavern Corp. · filed 1996-04-22(b)

In order to award summary judgment, a court must find that the movant has established its claim sufficiently to warrant the court as a matter of law to direct judgment in its favor (CPLR 3212 [b]), that there are no material triable issues of fact, and that the proof is tendered in admissible form (see, e.g., Zuckerman v City of New York, 49 NY2d 557; Naughton v Mueller, 203 AD2d 341).

Section 3212(b) requires a summary judgment movant to establish its claim or defense as a matter of law through competent proof.

Peterson v. Barry, Bette & Led Duke, Inc. · filed 1996-05-02(b)

In the procedural context of this case defendants initially had to support their summary judgment motion by establishing the merit of their recalcitrant worker defense as a matter of law (CPLR 3212 [b]; see, Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985; Marine Midland Bank v Hallman’s Budget Rent-A-Car, 204 AD2d 1007, 1009) or, failing that, had to show through competent proof that there is at least a triable material issue of fact which, if resolved favorably to defendants on a trial, would support the recalcitrant worker defense (see, Ha-gins v State of New York, supra, 81 NY2d, at 922; Adams v Cimato Bros., supra).

Section 3212(b) permits summary judgment when the movant shows entitlement to judgment as a matter of law and the opposing party fails to raise a triable issue of fact.

Dowson v. Forest Park Ass'n of Greenwood Lake, New York, Inc. · filed 1996-06-10(b)

The defendant demonstrated its entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, supra, at 562; Carroll v St. Anthony’s High School, supra) and the plaintiffs failed to proffer any evidence to establish the existence of triable issues of fact.

After a summary judgment movant makes a prima facie case, the opposing party must show facts sufficient to require a trial of a factual issue.

Guzman v. Strab Construction Corp. · filed 1996-06-24(b)

In order to defeat a motion for summary judgment after the movant has made out a prima facie case, the opposing party must "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212 permits summary judgment when there are no disputed material issues of fact.

Guri v. Atlanta International Insurance · filed 1996-08-06

Although summary judgment is a drastic remedy because it deprives a litigant of a day in court, it should be granted where there are no disputed material issues of fact.

Section 3212 permits summary judgment when the moving party makes a prima facie claim or defense and no disputed material fact requires a trial.

Bunk v. Blue Cross & Blue Shield of Utica-Watertown, Inc. · filed 1996-09-26

CPLR 3212 authorizes this court to grant summary judgment in favor of the moving party if it is satisfactorily demonstrated that there are no disputed issues of material fact which would preclude awarding the movant the relief for which a prima facie claim or defense has been made. ... Mindful of the foregoing, the court has carefully reviewed the parties’ submissions which reveal that there exists no dispute over any material fact; the dispute involves the interpretation and application of a contract clause.

Under CPLR 3212, the moving party must first establish its defense with admissible evidence; the opposing party must then show a genuine factual issue requiring trial.

Higgs v. County of Essex · filed 1996-10-24

Based upon our review of the record, we agree with Supreme Court that defendant met its initial burden of establishing its defense as a matter of law by the tender of evidentiary proof in admissible form (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). In response, plaintiff was required to come forward and lay bare his proof of evidentiary facts demonstrating the existence of a bona fide factual issue requiring a trial (see, Hagerman v State St. Realty, 205 AD2d 964, 965).

Opposing evidence can overcome a movant’s showing of entitlement to summary judgment.

Butler v. Delaware Otsego Corp. · filed 1996-12-05

Plaintiffs’ submissions in opposition to defendants’ motion for summary judgment overcome any entitlement defendants may have shown for such relief (see, Zuckerman v City of New York, 49 NY2d 557; Flacke v NL Indus., 228 AD2d 888).

Under CPLR 3212(b), summary judgment is warranted when the movant establishes entitlement to judgment as a matter of law and no material fact requires trial.

A to Z Associates v. Vamco, Inc. · filed 1997-01-09(b)

Plaintiff’s motion papers have established that it is entitled to judgment in its favor as a matter of law as there are no material facts in dispute warranting a trial {see, Zuckerman v City of New York, 49 NY2d 557, 562; see also, CPLR 3212 [b]).

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

Hurtig v. Arestia · filed 1997-01-27(b)

Aetna has failed to establish as a matter of law (see, CPLR 3212 [b]) that Alexander Garbizu was not operating the motor vehicle with Slotnick’s permission at the time that it was involved in the subject accident. Therefore, the Supreme Court properly denied Aetna’s motion for summary judgment.

Section 3212(b) requires summary judgment when the proof warrants judgment as a matter of law and no factual issue requires a trial.

In re the Estate of Campbell · filed 1997-03-03(b)

A motion for summary judgment must be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party * * * the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]). ... We find no facts at issue to warrant a hearing. On the law, the respondents must prevail.

Section 3212(a)’s 120-day deadline can run from the date a court sets trial when filing a note of issue has been waived.

Auger v. State · filed 1997-03-14(a)

Thus, we consider the court’s letter of May 3, 1996 setting the trial date to equate to the date of filing of the notes of issue. Therefore, since this motion was made more than 120 days after the filing of the notes of issue, we hereby deny the State’s motion as untimely pursuant to CPLR 3212 (a).

Section 3212 permits summary judgment when the moving party makes a prima facie case for relief and no disputed material fact requires a trial.

Montecalvo v. Herbowy · filed 1997-03-20

CPLR 3212 authorizes this court to grant summary judgment in favor of the moving party if it is satisfactorily demonstrated that there are no disputed issues of material fact which would preclude awarding the movant the relief for which a prima facie claim has been made.

Section 3212(b) requires the court to determine whether a factual issue remains, viewing the facts in the light most favorable to the party opposing summary judgment.

Rogers v. South Slope Holding Corp. · filed 1997-03-20(b)

The purpose of a motion for summary judgment is to sift out evidentiary facts and determine from them whether an issue of fact exists. (CPLR 3212 [b].) Facts averred by the nonmoving parties must be accepted as true and a decision on the motion must be made on the version of the facts most favorable to them.

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

Mason v. Mason · filed 1997-04-24(b)

Based on the fact that defendant did not receive a disposition, as a surviving spouse, of estate assets pursuant to the action in which plaintiff was seeking to hold her liable by reason of abatement, she met her burden of proving that she was entitled to judgment as a matter of law (see, Alvarez v Prospect Hosp., supra, at 324; Zuckerman v City of New York, supra, at 562; see also, CPLR 3212 [b]).

Section 3212 permits summary judgment when unrefuted facts establish a claim as a matter of law.

Fergang v. Flanagan · filed 1997-06-16

Plaintiff has established his cause of action as a matter of law based upon unrefuted facts and is entitled to summary judgment.

Section 3212(b) permits summary judgment when a defendant establishes a defense as a matter of law and the plaintiff fails to raise a triable issue of fact.

F.B. Transit Road Corp. v. DRT Constructon Co. · filed 1997-07-03(b)

DRT and W.R.S.B. presented proof establishing their defenses sufficiently to warrant judgment in their favor as a matter of law (see, CPLR 3212 [b]), and plaintiff failed to raise a triable issue of fact whether those defendants are equitably estopped from relying upon their defenses.

For summary judgment motions made after January 1, 1997, when the note of issue was filed before that date, section 3212(a)'s 120-day period runs from January 1, 1997.

DeJesus v. New York City Transit Authority · filed 1997-08-18(a)

Therefore, I hold that, for all summary judgment motions brought after January 1, 1997 in which the notes of issue were filed prior to this effective date, the 120-day period runs from January 1, 1997.

Section 3212(b) permits summary judgment when the movant establishes entitlement to judgment as a matter of law and the opposing party fails to show a triable issue of fact.

Greene v. Merchants & Business Men's Mutual Insurance · filed 1997-09-29(b)

We have reviewed the record and find that Suburban has demonstrated entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, supra, at 562). In response to Suburban’s motion, Merchants failed to proffer any evidence to show the existence of triable issues of fact. Under these circumstances, the Supreme Court correctly dismissed the third-party complaint.