N.Y. C.P.L.R. § 3212

Section 3212(b) requires a supporting affidavit to establish a foundation for the affiant’s personal knowledge of facts offered on a summary judgment motion.

Ocwen Loan Servicing, LLC v. Schacker · filed 2020-07-29(b)

Since the foreclosure specialist also failed to establish a foundation to show that he had personal knowledge as to whether OneWest possessed the note prior to commencement of the action ( see CPLR 3212[b]; see generally Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498, 509), the plaintiff failed to establish its standing.

Section 3212(b) requires supporting evidence in affidavit form, but an initial defect in form may be cured by submitting the identical evidence in proper form with reply papers.

Bacon & Seiler Constructors, Inc. v. Solvay Iron Works, Inc. · filed 2020-07-17(b)

While the declaration initially submitted by defendants in support of the motion was defective because the declaration was not in affidavit form ( see CPLR 3212 [b]), defendants corrected that technical defect by submitting the identical evidence in proper form in their reply papers.

Section 3212(b) requires a summary judgment motion to be supported by an affidavit or affirmation of facts; an unnotarized affirmation does not satisfy that requirement.

Pollack v. Ovadia · filed 2019-06-06(b)

Accordingly, the motion was not supported by affidavit or affirmation of facts, and was properly denied (CPLR 3212[b]).

Section 3212(b)'s personal knowledge requirement can be satisfied by submitting the opposing party's affidavit from another proceeding.

VanLoan v. Jones · filed 2019-06-07(b)

We reject defendant's contention that plaintiffs failed to support their motion with the affidavit of someone with personal knowledge of the relevant events ( see generally CPLR 3212 [b]). In addition to the affidavit of the attorney who attempted on behalf of decedent to obtain a promissory note for repayment of the money withdrawn from decedent's bank account, plaintiffs submitted the affidavit of defendant, originally submitted in a separate probate proceeding involving the same parties in Surrogate's Court.

A summary judgment motion must be supported by an affidavit from someone with personal knowledge of the facts and by other admissible evidence.

Saunders v. J.P.Z. Realty, LLC · filed 2019-09-17(b)

In this regard, CPLR 3212(b) provides that a summary judgment motion "shall be supported by affidavit" of a person "having knowledge of the facts" as well as other admissible evidence ( see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985]).

Section 3212(b) does not require specific allegations in a supporting affidavit as a jurisdictional condition.

Green v. State · filed 2007-05-14(b)

Neither CPLR 3213, nor the related summary judgment provisions of CPLR 3212 (b), necessitate that any specific allegations be made within the supporting affidavit as a jurisdictional requirement.

Section 3212(b) requires a summary judgment motion to be supported by an affidavit reciting material facts from a person with knowledge of them.

Gershon v. Cunningham · filed 2011-10-25(b)

In support of their motion for summary judgment on the eighth and ninth causes of action, both of which include a request for a permanent injunction, the plaintiffs failed to submit an affidavit reciting the material facts from “a person having knowledge of the facts” (CPLR 3212 [b]).

Section 3212(b) requires an affidavit from a person with knowledge of the facts, but its absence is not necessarily fatal when other proof supports the summary judgment motion.

Maragos v. Sakurai · filed 2012-02-28(b)

CPLR 3212 (b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney’s affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Olan v Farrell Lines, 64 NY2d 1092, 1093 [1985]; Carniol v Carniol, 288 AD2d 421, 422 [2001]; Finnegan v Staten Is. R.T. Operating Auth., 251 AD2d 539, 540 [1998]; see also Fowler v New York City Tr. Auth., 245 AD2d 416 [1997]; Standard Fruit & S.S. Co., Div. of Castle & Cooke v Russo, 67 AD2d 970, 970 [1979]).

Section 3212(b) allows an affidavit supporting summary judgment to rely on business records and personal knowledge when the affiant adequately explains the basis of that knowledge.

Education Plus, Inc. v. Glasser · filed 2013-12-12(b)

The billing manager’s affidavit adequately explained that her knowledge was based upon the books and records that were made and maintained in the ordinary course of plaintiffs business together with her own personal knowledge of defendants’ account (see CPLR 3212 [b]; 4518 [a]; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]).

A summary judgment affidavit may rely on business records even if the affiant lacks personal knowledge of how the records were created.

HSBC Bank USA, National Association v. Sage · filed 2013-12-12(b)

Contrary to defendant’s claim, the affidavit from an assistant vice-president of the mortgage servicing company was adequately based on a review of the books and records of the company maintained in the ordinary course of business, and the lack of personal knowledge as to the creation of the documents is not fatal (see CPLR 3212 [b]; 4518 [a]; Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]).

A summary judgment movant must support the motion with an affidavit from a person with knowledge of the facts.

Cullin v. Spiess · filed 2014-11-19(b)

The plaintiff failed to demonstrate her prima facie entitlement to judgment as a matter of law on the complaint. The plaintiff failed to submit, with her moving papers, an affidavit by a person with knowledge of the facts (see CPLR 3212 [b]; Currie v Wilhouski, 93 AD3d 816, 817 [2012]; Menzel v Plotnick, 202 AD2d 558, 559 [1994]).

An affidavit offered to establish a movant’s prima facie entitlement to summary judgment must come from someone with personal knowledge of the relevant facts.

Montemarano v. Atlantic Express Transportation Group, Inc. · filed 2014-12-03(b)

The appellants failed to make a prima facie showing that DCAG was outside the manufacturing, selling, or distribution chain, as the affidavit they submitted in support of that branch of their motion was not from an officer or employee of DCAG with personal knowledge of the facts (see CPLR 3212 [b]; cf. Pangallo v Mitsubishi Intl. Corp., 220 AD2d 650, 651 [1995]; Smith v City of New York, 133 AD2d 818, 819 [1987]).

Section 3212(b) permits an attorney’s affidavit to support summary judgment when the attorney has personal knowledge of the relevant facts.

Boye v. Rubin & Bailin, LLP · filed 2017-05-30(b)

As an initial matter, we find that, contrary to plaintiff’s assertion, defendant Vaughn-Flam’s affidavit sufficed to support the summary judgment motion on behalf of the defendant firm. Defendant Vaughn-Flam, as counsel to the firm, submitted an affidavit which states that it was based on his personal knowledge and review of certain attached documents.

Section 3212(b) requires a summary judgment movant's affidavit to be based on personal knowledge of the relevant facts.

Clarke v. American Truck & Trailer, Inc. · filed 2019-04-02(b)

Accordingly, he has no personal knowledge of National Freight's activities at the relevant times. Indeed, he admits as much when he states that the basis for his claimed knowledge of which entity was responsible for providing distribution services at the subject facility was his having been so "advised" by an unnamed person or persons. Accordingly, his affidavit is insufficient to establish defendant's entitlement to summary judgment (CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557, 562 [1980]).

Section 3212(b) requires a summary judgment movant's affidavit to cite material facts known to the affiant; an affidavit based on unidentified, unproduced records has no probative value.

Residential Credit Solutions, Inc. v. Gould · filed 2019-04-30(b)

Where an affiant's knowledge of the facts alleged is obtained from "unnamed and unsworn employees or unidentified and unproduced work records, the affidavit lacks any probative value" and fails to fulfill the requirement of CPLR 3212(b) that the party seeking summary judgment present affidavits citing material facts from affiants with knowledge of those facts ( Dempsey v Intercontinental Hotel Corp. , 126 AD2d at 479; see also Barraillier v City of New York , 12 AD3d at 169; Great Am. Ins. Co. , 133 AD3d at 632-633; compare Nationstar Mtge. LLC v Accardo , 159 AD3d 662 [1st Dept 2018] [summary judgment properly granted where the note was attached to the complaint, and the affidavit of plaintiff's vice president stating that plaintiff obtained possession of original note two years earlier was supported by "corroborating documentary evidence"]).

Section 3212(b) permits a summary judgment motion supported by affidavits from people with knowledge of the facts, even without deposition transcripts or other proof.

Masmalaj v. New York City Economic Dev. Corp. · filed 2021-09-29(b)

As a threshold matter, contrary to the contention of West Rac and the City defendants, the plaintiff's motion papers, which were supported by affidavits from persons having knowledge of the facts but did not include other proof such as deposition transcripts, were not procedurally [*2]defective ( see CPLR 3212[b]; cf. Notskas v Longwood Assoc., LLC , 112 AD3d 599, 599-600; Vetrano v J. Kokolakis Contr., Inc. , 100 AD3d 984, 986; Maragos v Sakurai , 92 AD3d 922, 923).

A no-fault plaintiff seeking summary judgment need not rebut the insurer’s defenses in its initial showing.

Complete Orthopedic Supplies, Inc. v. State Farm Insurance · filed 2007-05-14(b)

As a matter of law, a no-fault plaintiffs summary judgment showing is extremely limited and is free of the normal summary judgment obligation to rebut defenses.

Section 3212(b) permits summary judgment for a nonmoving party only when the affected party has fair notice and an opportunity to present defenses.

Salazar v. United Rentals, Inc. · filed 2007-06-19(b)

The power of the court to award summary judgment for or against to a nonmoving party pursuant to CPLR 3212 (b) does not dispense with the necessity for fair notice and an opportunity of a party to present his or her defenses (see Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]).

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party.

Altmann v. Molead · filed 2008-05-08(b)

Summary judgment was also properly granted to defendants Johnson and St. Barnabas upon a search of the record (CPLR 3212 [b]).

CPLR 3212(b) permits a court to search the record and award summary judgment to a party who did not move for it.

Becher v. Feller · filed 2009-07-21(b)

Moreover, the Supreme Court should have, upon searching the record, awarded summary judgment to Feller and Uziel dismissing the sixth cause of action insofar as asserted against them as well (see CPLR 3212 [b]).

Section 3212(e) permits the court to grant summary judgment to any party when a party cross-moves for summary judgment.

Erie Insurance Group v. National Grange Mutual Insurance · filed 2009-06-18(e)

... plaintiffs cross-moved for summary judgment, permitting the court to grant judgment to any party (see CPLR 3212 [e]). ... NGM was entitled to dismissal of the complaint against it based upon undisputed facts and the language of the insurance policy.

Section 3212(b) permits a court to search the record and grant summary judgment to parties who did not move for it when at least one party has moved for summary judgment.

Dickson v. Slezak · filed 2010-05-06(b)

However, where, as here, at least one party has moved for summary judgment, Supreme Court may search the record and grant summary judgment even as to parties who have not moved for such relief (see CPLR 3212 [b]; Perkins v Kapsokefalos, 57 AD3d 1189, 1191 [2008], lv denied 12 NY3d 705 [2009]; Schultes v Kane, 50 AD3d 1277, 1278 [2008]).

CPLR 3212(b) allows a court to search the record and award summary judgment to a nonmoving party on an issue raised by the motion.

Pope v. Safety & Quality Plus, Inc. · filed 2010-06-15(b)

The Supreme Court has the authority, pursuant to CPLR 3212 (b), to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Marciano v Ran Oil Co. E., LLC, 63 AD3d 1118, 1119 [2009]; Federal Natl. Mtge. Assn. v Katz, 33 AD3d 755, 756 [2006]; Murray v Murray, 28 AD3d 624, 625 [2006]).

Section 3212(b) permits an appellate court to search the record and award summary judgment to a nonappealing party, but does not permit it to search the record to deny summary judgment against that party.

Mixon v. TBV, Inc. · filed 2010-06-22(b)

CPLR 3212 (b) permits the Appellate Division to search the record and award summary judgment to a nonappealing party. Here, summary judgment was awarded to the van defendants dismissing the plaintiffs’ complaint insofar as asserted against them. We lack the power under that statute to search the record and deny summary judgment against the nonappealing plaintiffs.

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party.

Navillus Tile, Inc. v. George A. Fuller Co. · filed 2011-04-19(b)

Contrary to the plaintiffs contention, the Supreme Court had authority to search the record and award summary judgment to the nonmoving defendants (see CPLR 3212 [b]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 385 [2005]).

Section 3212(b) does not permit summary judgment for a nonmoving defendant when the plaintiffs have raised triable issues of fact.

Kievman v. Philip · filed 2011-05-17(b)

Accordingly, the Supreme Court erred in granting the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them and, in effect, searching the record and awarding summary judgment to the nonmoving defendant “Bus Driver Doe.”

CPLR 3212(b) permits a court to search the record and award summary judgment to a nonmoving party on an issue raised by the motion.

Homecomings Financial, LLC v. Guldi · filed 2013-07-03(b)

Upon our authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212 [b]), we award summary judgment to the appellant, dismissing the amended complaint insofar as asserted against him, without prejudice.

CPLR 3212 (b) permits a court to grant summary judgment to a nonmoving party when the issue is before the court on a cross motion.

GAFFNEY, PATRICK v. NORAMPAC INDUSTRIES, INC. · filed 2013-09-27(b)

Plaintiff cross-moved for partial summary judgment on, inter alia, the Labor Law § 240 (1) cause of action and, pursuant to CPLR 3212 (b), the court had the authority to grant relief to a nonmoving party (see ... Simet v Coleman Co., Inc., 42 AD3d 925, 927-928).

Section 3212(b) allows a court to search the record and grant summary judgment to a nonmoving party on a cause of action or issue before the court on the motion.

REMET CORPORATION v. ESTATE OF JAMES R. PYNE · filed 2013-12-27(b)

We therefore reverse the judgment and, because we “may search the record and grant summary judgment in favor of a nonmoving party . . . with respect to a cause of action or issue that is the subject of the motions before the court” (Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111), we grant summary judgment to defendants declaring that plaintiff is not entitled to indemnification from defendants.

Section 3212(b) allows a court to search the record and award summary judgment to a nonmoving party entitled to judgment as a matter of law.

Johnson v. Zelanis · filed 2014-01-09(b)

Although plaintiffs did not cross-move for summary judgment, we will nonetheless search the record and grant such judgment where, as here, the nonmoving party is entitled to ... relief as a matter of law (see CPLR 3212 [b]; ...).

Section 3212(b) permits a court to search the record and grant summary judgment to a nonmoving party on an issue raised by the motion.

In re Mercer · filed 2014-01-22(b)

Further, as there are no triable issues of fact, we award summary judgment to the appellants dismissing the subject objections pursuant to our authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the trial court (see CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996]; cf. Homecomings Fin., LLC v Guldi, 108 AD3d 506, 509 [2013]; Branch Servs., Inc. v Cooper, 102 AD3d 645, 647 [2013]; Ho Sports, Inc. v Meridian Sports, Inc., 92 AD3d 915, 917 [2012]).

CPLR 3212(b) permits a court to search the record and award summary judgment to a nonmoving party when the same ground warrants judgment in that party’s favor.

Mohamed v. Blackowl · filed 2014-04-02(b)

Therefore, the Supreme Court properly granted the motion of the Khalou defendants for summary judgment dismissing the complaint insofar as asserted against them, and, for the same reason, properly, in effect, searched the record and awarded summary judgment to the nonmoving defendant Philip P. Blackowl dismissing the complaint insofar as asserted against him (see CPLR 3212 [b]).

Section 3212(b) permits a court to search the record and award summary judgment to a nonmoving party when the same grounds support judgment in its favor.

Licalzi v. Wells Fargo Bank, N.A. · filed 2015-02-25(b)

For the same reasons, the Supreme Court properly, in effect, searched the record and awarded summary judgment to the nonmoving attorney defendants dismissing the complaint insofar as asserted against them (see CPLR 3212 [b]; Mohamed v Blackowl, 116 AD3d 678, 679 [2014]).

Section 3212(b) permits a court to search the record and award summary judgment to nonmoving parties.

Greene v. Rachlin · filed 2017-10-18(b)

Contrary to the plaintiffs’ contention, the Supreme Court properly exercised its authority to search the record and award summary judgment to the nonmoving parties, the Rachlin defendants and the Nicolosi defendants, dismissing the amended complaint insofar as asserted against them (see CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996]).

Determinations after a nonjury trial under CPLR 3212(c) receive the same broad factual review as other nonjury trial determinations.

O'Brien v. Dalessandro · filed 2007-09-25(c)

“In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s authority is ‘as broad as that of the trial court’ and includes the power to ‘render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses’ ” (Man Choi Chiu v Chiu, 38 AD3d 619 [2007], quoting Northern Westchester Professional Park Assoc, v Town of Bedford, 60 NY2d 492, 499 [1983]). This standard applies to review of determinations made after a nonjury trial conducted ... pursuant to CPLR 3212 (c) (see Matter of Capizola v Vantage Intl., 2 AD3d 843 [2003]).

After a nonjury trial under CPLR 3212(c), an appellate court independently reviews the evidence while giving due deference to the trial judge’s credibility findings.

Rini v. Kenn-Schl, LLC · filed 2009-07-09(c)

Furthermore, because the determination herein was made after a nonjury trial conducted pursuant to CPLR 3212 (c), we will “independently review the weight of the evidence and . . . grant the judgment warranted by the record, while according due deference to the trial judge’s factual findings particularly where, as here, they rest largely upon credibility assessments” (Martin v Fitzpatrick, 19 AD3d 954, 957 [2005]; accord Chase Manhattan Bank v Douglas, 61 AD3d 1135, 1136 [2009]; see O’Brien v Dalessandro, 43 AD3d 1123, 1123-1124 [2007]).

CPLR 3212(c) gives the trial court discretion whether to order an immediate trial.

Frechtman v. Gutterman · filed 2016-06-16(c)

The trial court acted well within its discretion in not ordering an immediate trial under CPLR 3212 (c).

After a nonjury trial under Section 3212(c), an appellate court independently reviews the evidence while giving due deference to the trial judge’s credibility findings.

HSBC Bank USA, National Ass'n v. Corazzini · filed 2017-03-09(c)

Inasmuch as Supreme Court’s resolution of the standing issue “was made after a nonjury trial conducted pursuant to CPLR 3212 (c), we will ‘independently review the weight of the evidence and . . . grant the judgment warranted by the record, while according due deference to the trial judge’s factual findings particularly where . . . they rest largely upon credibility assessments’ ” (Rini v Kenn-Schl, LLC, 64 AD3d 988, 989 [2009], lv denied 13 NY3d 711 [2009], quoting Martin v Fitzpatrick, 19 AD3d 954, 957 [2005]; see Deep v Boies, 121 AD3d 1316, 1318-1319 [2014], lv denied 25 NY3d 903 [2015]).

CPLR 3212 summary judgment is not the remedy for a plaintiff’s refusal to cooperate in a medical examination; the defendant should seek sanctions.

Washington v. Delossantos · filed 2007-10-09

Where there is evidence that the plaintiff refuses to cooperate in the examination process, the proper remedy is for the defendant to move, not for summary judgment pursuant to CPLR 3212, but rather for sanctions such as preclusion of evidence, or dismissal of the complaint (see CPLR 3126; cf. Allen v State of New York, 228 AD2d 1001, 1002 [1996]).

Section 3212(c) permits a court to refer unresolved factual issues about amounts owed to a referee to hear and report.

Board of Managers of the 25 Charles Street Condominium v. Seligson · filed 2011-06-14(c)

However, inasmuch as defendant’s challenges to the individual expenditures created questions of fact as to the legitimacy of the individual actions, the court appropriately referred the matter to a referee to hear and report on the issue of whether defendant owed plaintiffs any money, and if so, the amounts owed (see CPLR 3212 [c]).

A party may not raise a CPLR 3212(f) argument that a summary judgment motion was premature for the first time on appeal.

Panteleon v. Amaya · filed 2011-06-21(f)

Moreover, the plaintiffs contention that Amaya’s motion was premature and should have been denied pursuant to CPLR 3212 (f) is improperly raised for the first time on appeal and, thus, is not properly before this Court (see Aglow Studios, Inc. v Karlsson, 83 AD3d 747 [2011]).

Section 3212 summary judgment motions may be heard in small claims court.

Rozz v. Village Auto Body Works, Inc. · filed 2012-02-09

Nor did the District Court err in entertaining defendant’s motion for accelerated judgment. The court rules governing small claims procedure specifically provide for the hearing of motions (see Uniform Civil Rules for Dist Cts [22 NYCRR] § 212.41 [Z]), and we have previously affirmed orders granting CPLR article 32 motions for accelerated judgment made in small claims court (e.g. Spiegel v Continental Airlines, 11 Misc 3d 145[A], 2006 NY Slip Op 50812[U] [App Term, 9th & 10th Jud Dists 2006]; Hardin v Northport-East Northport Union Free School Dist., 4 Misc 3d 128[A], 2004 NY Slip Op 50636[U] [App Term, 9th & 10th Jud Dists 2004]).

Section 3212 requires a court to consider firsthand, nonhearsay statements in an affidavit opposing summary judgment even if the affidavit also contains hearsay.

Silva v. FC Beekman Associates, LLC · filed 2012-02-14

The Supreme Court erred in refusing to consider any portion of Kern’s affidavit in opposition to the plaintiff’s motion for summary judgment as inadmissible hearsay.

When total damages cannot be ascertained, CPLR 3212(c) calls for denying summary judgment as to damages and conducting an inquest.

Murray v. Farrell · filed 2012-07-12(c)

Where, as here, a party’s damages cannot be ascertained in total, the appropriate course of action is to deny the moving party summary judgment as to damages and conduct an inquest (see CPLR 3212 [c]).

Only a party to an action may move for summary judgment under CPLR 3212.

Spota v. County of Suffolk · filed 2013-10-09

As only a party to an action may move for summary judgment, Nichols’s cross motion for summary judgment was properly denied for lack of standing (see CPLR 3212).

A summary judgment motion made more than 120 days after the filing of the note of issue requires a showing of good cause for the delay.

Edmund v. Albert Einstein Hospital · filed 2014-06-19(a)

Jacobi’s motion should have been denied as untimely, as it was made more than 120 days after the filing of the note of issue, with no explanation given, let alone good cause shown, for the delay (CPLR 3212 [a]; see also Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]).

Section 3212(a) treats a summary judgment motion made exactly 120 days after the note of issue is filed as timely.

He Ping Shao v. Wei · filed 2014-06-25(a)

The plaintiffs assert that Cao’s motion was made after the expiration of the 120-day time period for making summary judgment motions set forth in CPLR 3212 (a) because December 3, 2010, was 121 days after the filing of the note of issue on August 5, 2010. However, December 3, 2010, was exactly 120 days after August 5, 2010, meaning that the branch of Cao’s motion which was for summary judgment dismissing the complaint insofar as asserted against her was not untimely.

A summary judgment motion filed after a court-ordered deadline measured from the filing of the note of issue is untimely.

Williams v. Wright · filed 2014-07-09(a)

The plaintiffs motion for summary judgment on the issue of liability was made more than 90 days after the filing of the note of issue, in violation of the terms of a certification order requiring motions for summary judgment to be filed within 90 days of the filing of a note of issue (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]; Fiorino v North Shore Univ. Hosp. at Glen Cove, 78 AD3d 1116 [2010]).

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

Khanimov v. McDonald's Corp. · filed 2014-10-29(a)

Contrary to the plaintiffs contention, 82 Court’s motion for summary judgment was timely (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]).

Under CPLR 3212(a), a preliminary conference order setting a 120-day summary judgment deadline remains effective after reassignment to a part with a 60-day rule unless the court directs otherwise.

Freire-Crespo v. 345 Park Avenue L.P. · filed 2014-11-20(a)

The reassignment of the matter thereafter to a part whose rules provide for a standard 60-day time limit did not serve to eliminate that provision of that preliminary conference order, in the absence of a further order or directive explicitly providing for a reduced time limit, or some other means of directing that the time limits of the new part’s rules would supersede the preliminary conference order.

A note of issue struck by court order does not start the 120-day deadline for a summary judgment motion.

SWENEY, JERRY v. COUNTY OF NIAGARA · filed 2014-11-21(a)

Where, as here, a note of issue is struck by court order, it cannot commence the running of the time limit set forth in CPLR 3212 (a) (see Williams v Peralta, 37 AD3d 712, 713).

Section 3212(a) does not start the time to move for summary judgment when a District Court case is transferred to the arbitration calendar.

Salamone v. Digiacomo · filed 2015-01-15(a)

The District Court erred in finding that plaintiffs time to make the motion for summary judgment commenced upon the matter being “transferred to the arbitration calendar,” since there is no such provision which governs the timeliness of a motion for summary judgment (see CPLR 3212 [a]; UDCA 1001, 1301; see also Uniform Civ Rules for Dist Cts [22 NYCRR] § 212.10).

CPLR 3212(a) allows 120 days after the filing of a note of issue to move for summary judgment unless the court sets another deadline; a later motion requires leave of court and good cause.

Silva v. FC Beekman Associates, LLC · filed 2015-03-25(a)

Unless a trial court specifies otherwise, a party has 120 days after the filing of a note of issue to move for summary judgment, after which it may do so only with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]; Carrasco v Weissman, 120 AD3d 534, 536 [2014]; Demacopoulos v City of New York, 73 AD3d 842 [2010]). Here, the court set an earlier deadline. The appellants failed to establish good cause for not timely serving the papers in connection with their cross motion for summary judgment on the issue of liability on their third-party cause of action for common-law indemnification within the time limit set by the court (see Brill v City of New York, 2 NY3d at 652; Demacopoulos v City of New York, 73 AD3d at 842; Carrasco v Weissman, 120 AD3d at 536). Accordingly, the Supreme Court properly denied their cross motion as untimely.

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

Montes v. City of New York · filed 2016-06-22(a)

Moreover, the court properly denied the motion as untimely in view of Cortez’s failure to show “good cause” for not serving the motion within 120 days after the filing of the note of issue (CPLR 3212 [a]; see Brill v City of New York, 2 NY3d 648, 652 [2004]; Hsiao Yung Wang v Chei Fong Lee, 110 AD3d 1060 [2013]; Ofman v Ginsberg, 89 AD3d 908, 908 [2011]).

CPLR 3212(a) allows a court to extend the time to move for summary judgment.

Breuer v. Friedlander · filed 2017-02-01(a)

The order dated ■ February 26, 2015, extended the time to move for summary judgment to May 29, 2015, and, thus, the subject motion, made on May 28, 2015, was timely (see CPLR 3212 [a]; Kings County Supreme Court Uniform Civil Term Rules, part C, rule 6; 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]; Adika v Dramitinos, 74 AD3d 848, 849 [2010]; Alvarez v Eviles, 56 AD3d 500 [2008]).

Section 3212(a) permits a court to extend the time to move for summary judgment when the movant establishes good cause for the delay.

Livingston v. Better Medical Health, P.C. · filed 2017-04-26(a)

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of the defendants’ motion which was for an extension of time to move for summary judgment. The defendants established good cause for the delay (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Court-approved orders and stipulations can permit a summary judgment motion more than 120 days after the note of issue is filed.

Reeps v. BMW of N. Am., LLC · filed 2018-04-26(a)

Prior court orders and stipulations between the parties show that the parties, with the court's consent, charted a procedural course that deviated from the path established by the CPLR and allowed for defendants' filing of this round of summary judgment motions more than 120 days after the filing of the note of issue ( see Corchado v City of New York , 64 AD3d 429 [1st Dept 2009]).

When a case is removed from the trial calendar, the earlier note of issue is nullified for purposes of the deadline to move for summary judgment.

Mack v. Harley · filed 2018-10-03(a)

Contrary to the defendants' contention, the plaintiff's motion was not untimely pursuant to CPLR 3212(a). The note of issue filed on September 20, 2013, was, in effect, nullified when the case was removed from the trial calendar ( see Lance Intl., Inc. v First Natl. City Bank , 86 [*2]AD3d 479, 480; Farrington v Heidkamp , 26 AD3d 459, 460; Negron v Helmsley Spear, Inc ., 280 AD2d 305, 305; Bono v Barzallo , 260 AD2d 592). Therefore, the operative note of issue was filed on or about August 6, 2015 ( see Lance Intl., Inc. v First Natl. City Bank , 86 AD3d at 480; Williams v Peralta , 37 AD3d 712, 713), and the motion was timely.

A summary judgment motion is timely if made within 120 days after a new notice of trial is filed following vacatur of the first notice.

563 Grand Med., P.C. v. Country-Wide Ins. Co. · filed 2018-11-02(a)

We find that the branch of defendant's motion seeking summary judgment was timely, as plaintiff's first notice of trial had been vacated ( see Farrington v Heidkamp , 26 AD3d 459 [2006]), and defendant made its motion within 120 days after plaintiff had filed its second notice of trial upon the direction of the Civil Court ( see CPLR 3212 [a]).

A CPLR 3212 summary judgment motion based on improper service must be made within 60 days after service of the responsive pleading under CPLR 3211(e).

U.S. Bank N.A. v. Roque · filed 2019-05-08

CPLR 3211(e) expressly requires that a motion "for judgment" be made within 60 days after service of the responsive pleading. A motion pursuant to CPLR 3212 is such a motion and is made after issue is joined by the service of an answer.

A summary judgment motion must be made within 120 days after the note of issue is filed unless the court grants leave for good cause; a motion served by mail is made when it is mailed.

Metro Psychological Servs., P.C. v. American Tr. Ins. Co. · filed 2019-10-11(a)

CPLR 3212 (a) provides that a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" ( see also Brill v City of New York , 2 NY3d 648, 651 [2004]). ... Since defendant served its motion upon plaintiff's attorney on May 11, 2016, defendant's motion was timely.

Section 3212(a) requires a summary judgment motion to be made within 120 days after the note of issue, or the Civil Court notice of trial, unless the court sets another date or grants leave for good cause.

BQE Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co. · filed 2019-11-22(a)

Unless a court sets another date, a motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown ( see CPLR 3212 [a]; Brill v City of New York , 2 NY3d 648 , 651 [2004]; Boereau v Scott , 140 AD3d 687 [2016]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co. , 43 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Section 3212(a) requires a summary judgment motion within 120 days after filing a note of issue or, in Civil Court, a notice of trial, unless the court grants leave for good cause.

Longevity Med. Supply, Inc. v. Travelers Prop. & Cas. Ins. Co. · filed 2019-11-29(a)

A motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown ( see CPLR 3212 [a]; Brill v City of New York , 2 NY3d 648 , 651 [2004]). ... Since the affidavit of service of defendant's motion states that defendant mailed the motion to plaintiff's attorney on December 13, 2016, defendant's motion for summary judgment dismissing the complaint was timely ( see CPLR 2103 [b] [2]; Pietrafesa v Canestro , 130 AD3d 602 [2015]).

Section 3212(a) requires a summary judgment motion to be made within 120 days after the note of issue is filed unless the court sets another deadline or grants leave for good cause.

Bricenio v. Perez · filed 2019-12-24(a)

CPLR 3212(a) provides that, unless the court has set a different date, a motion for summary judgment must be made "no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." ... In light of the Samame defendants' failure to demonstrate, prima facie, that their motion for summary judgment was timely, we agree with the court's determination denying the motion ( see generally Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853).

CPLR 3212(a) permits courts to set deadlines for summary judgment motions and requires good cause to excuse a late motion.

Gonzalez v. Pearl · filed 2020-01-08(a)

Here, the defendants' separate motions for summary judgment were untimely because they were not served within 60 days after the filing of the note of issue. Further, the court providently exercised its discretion in determining that the defendants failed to establish good cause to excuse their delays ( see CPLR 3212[a]; Luciano v H.R.H. Constr., LLC , 89 AD3d 578, 579; Giudice v Green 292 Madison, LLC , 50 AD3d 506).

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

Wells Fargo Bank, NA v. Madlen Apt · filed 2020-01-29(a)

We agree with the Supreme Court's determination denying the branch of the plaintiff's 2014 motion as untimely on the ground that the plaintiff failed to demonstrate good cause for the delay in making its motion ( see CPLR 3212[a]; Brill v City of New York , 2 NY3d 648, 652; Miller v Ball , 165 AD3d 920). ... The vacatur of the note of issue returned the case to its pre-note of issue status ( see Montalvo v Episcopal Health Servs., Inc. , 172 AD3d 1357, 1358; Montalvo v Mumpus Restorations, Inc. , 110 AD3d 1045, 1046), and the plaintiff could again seek summary judgment ( see Farrington v Heidkamp , 26 AD3d 459, 460).

Section 3212(a) allows a summary judgment motion filed within 120 days after the notice of trial and certificate of readiness.

Milton v. Subraj · filed 2020-06-05(a)

This motion was made within 120 days of the filing of the notice of trial and certificate of readiness ( see CPLR 3212 [a]).

Section 3212(a) requires good cause to extend the deadline for a summary judgment motion; a perfunctory claim of law office failure does not suffice.

Lanza v. M-A-C Home Design & Constr. Corp. · filed 2020-11-12(a)

Thus, since good cause for allowing an extension of time to move for summary judgment was not shown, we disagree with the Supreme Court's exercise of its discretion in granting the defendant's motion for leave to extend the time to move for summary judgment ( see Matter of Hibbert , 137 AD3d 786, 787; Quinones v Joan & Sanford I. Weill Med. Coll. & Graduate Sch. of Med. Sciences of Cornell Univ. , 114 AD3d 472, 474).

Section 3212(a) requires a summary judgment motion filed more than 120 days after the note of issue to be supported by a showing of good cause for the delay; an explanation first offered in reply papers is too late.

Rivera v. Zouzias · filed 2021-01-27(a)

Pursuant to CPLR 3212(a), unless the trial court directs otherwise, a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" ( see Brill v City of New York , 2 NY3d 648). Here, the defendants moved for summary judgment dismissing the complaint more than 120 days after the filing of the note of issue without seeking leave of court or offering an explanation showing good cause for their delay. As a result, the Supreme Court improvidently exercised its discretion in considering the defendants' good cause argument, presented for the first time in reply papers, and in granting their motion ( see O'Neil v Environmental Prods. Corp. , 187 AD3d 771, 772; Nationstar Mtge., LLC v Weisblum , 143 AD3d 866, 869; Goldin v New York & Presbyt. Hosp. , 112 AD3d 578, 579).

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

BSS Med., P.C. v. Metropolitan Prop. & Cas. Ins. · filed 2021-12-22(a)

Contrary to plaintiff's contention, defendant's motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" ( see also Brill v City of New York , 2 NY3d 648, 651 [2004]).

Section 3212(a) does not require a note of issue to be filed before a party moves for summary judgment or a court grants the motion.

AARISMAA, IV, JAAN A., MTR. OF · filed 2014-02-14(a)

Further, pursuant to the plain language of CPLR 3212 (a), there is no merit to petitioner’s position that a note of issue must be filed before a party moves for summary judgment or before a court grants such a motion.

A party may move for summary judgment after issue is joined; a note of issue need not be filed before the motion is made or granted.

In re the Estate of Wagner · filed 2014-02-14(a)

Further, pursuant to the plain language of CPLR 3212 (a), there is no merit ... to petitioner’s position that a note of issue must be filed before a party moves for summary judgment or before a court grants such a motion.

Section 3212 permits partial summary judgment on liability based on res ipsa loquitur when the evidence makes the inference of negligence inescapable.

Bonacci v. Brewster Service Station, Inc. · filed 2016-10-05

The court finds that this is one of those rare cases recognized by Morejon when res ipsa loquitur can be applied in order to determine whether plaintiff is entitled to summary judgment as to liability.

CPLR 3212 provides summary judgment for civil litigants but does not authorize a criminal court to enter a conviction on a pretrial summary judgment motion.

People v. Cullen (William) · filed 2017-04-27

There is no authority for a criminal court to render a judgment of conviction pursuant to a pretrial motion for summary judgment since, with rare exceptions, the CPLR is inapplicable to criminal proceedings ( see CPLR 101; CPL 1.10 [1]; UCCA 2001; People v [*2] Manupelli , 22 Misc 3d 67 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), and the Criminal Procedure Law does not include a provision for accelerated judgment such as is available to civil litigants pursuant to CPLR 3212.

Section 3212(b), which governs summary judgment in civil cases, does not apply to a motion to reargue or renew in a criminal case.

People v. Jones · filed 2017-07-20(b)

Defendant also argues that, pursuant to CPLR 3212 (b), the provision which governs motions for summary judgment in civil cases, the People are required to attach the “full record” to their moving papers before this court may decide the People’s motion. That section of the CPLR is inapposite to the current motion.

CPLR 3212 permits summary judgment in a Family Court Act article 10 proceeding when no triable issue of fact remains.

Matter of Jaylhon C. (Candace C.) · filed 2019-03-20

While there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted when it has been clearly ascertained that there is no triable issue of fact outstanding ( see Family Ct Act § 165[a]; Matter of Suffolk County Dept. of Social Servs. v James M. , 83 NY2d 178, 182).

CPLR 3212 permits summary judgment in a Family Court Act article 10 proceeding when no triable issue of fact remains.

Matter of Lluvia G. (Bolivar G.G.) · filed 2020-05-06

"While there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted when it has been clearly ascertained that there is no triable issue of fact outstanding" ( Matter of Jaylhon C. [Candace C.] , 170 AD3d 999, 1000-1001; see Family Ct Act § 165[a]; Matter of Suffolk County Dept. of Social Servs. v James M. , 83 NY2d 178, 182).

CPLR 3212 permits summary judgment in a Family Court Act article 10 proceeding when no triable issue of fact remains.

Matter of Elijah G. (Chastity G.) · filed 2020-06-24

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding ( see Family Ct Act § 165[a]; Matter of Jaylhon C. [Candace C.] , 170 AD3d 999, 1000-1001).

CPLR 3212 permits summary judgment in Family Court Act article 10 proceedings when no triable issue of fact remains.

Matter of Azayla K. L. (Aleisha L.) · filed 2020-10-21

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding ( see Family Ct Act § 165[a]; Matter of Jaylhon C. [Candace C.] , 170 AD3d 999, 1000-1001).

Section 3212(g) permits summary judgment establishing an innocent passenger's lack of fault even when the defendant drivers' comparative negligence remains in dispute.

Morris v. Dorota · filed 2020-10-28(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]; Romain v City of New York , 177 AD3d at 591; Jung v Glover , 169 AD3d 782, 783; Medina v Rodriguez , 92 AD3d at 851).

On a summary judgment motion, hearsay may be considered in opposition, but hearsay alone cannot defeat the motion.

Watson v. Peschel · filed 2020-11-20

Further, although hearsay evidence may be considered in opposition to a motion for summary judgment, it is not by itself sufficient to defeat such a motion ( see Thygesen v North Bailey Volunteer Fire Co., Inc. , 151 AD3d 1708, 1710 [4th Dept 2017]).

Section 3212(h) does not impose a discovery stay for summary judgment motions in actions involving public participation.

Sweigert v. Goodman · filed 2021-04-22(h)

Notably, CPLR 3212(h), which applies to state court motions for summary judgment in actions involving public participation, does not impose a stay of discovery.