N.Y. C.P.L.R. § 3212

Section 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment; the opposing party must then present evidence of a triable issue of fact.

Lester v. Waterman · filed 1997-09-29(b)

The defendant made a prima facie showing of entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). In response, the plaintiff failed to proffer any evidence to show the existence of triable issues of fact.

When the note of issue was filed before January 1, 1997, a summary judgment motion made within 120 days after that date is timely under the amended section.

Dugandzic v. New York City School Construction Authority · filed 1997-10-30(a)

The motion and cross motion, brought within 120 days of January 1, 1997, are timely.

CPLR 3212(b) supports summary judgment when admissible proof establishes entitlement to judgment as a matter of law and the opposing party fails to raise a triable issue of fact.

United States v. Quaintance · filed 1997-11-19(b)

Supreme Court properly denied the motion of defendants for summary judgment and granted plaintiffs cross motion for summary judgment in this mortgage foreclosure action. Plaintiff submitted proof in admissible form establishing as a matter of law that the defenses based upon the Statute of Limitations and lack of consideration have no merit, and defendants failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212(a)'s 120-day deadline does not bar a summary judgment motion when the case has been marked off calendar and no new notice of trial has been filed.

Attilio v. Gladstone · filed 1997-11-19(a)

As previously stated, the amendment to CPLR 3212 (a) was enacted to prevent summary judgment motions from being made on the eve of trial and thus delay the day of trial. When this case was marked "off calendar” and a new notice of trial not yet filed, the original notice of trial was thereby rendered a nullity. There being no viable Notice of Trial on file herein, the present motion cannot be regarded as one made "on the eve of trial” and violative of the 120-day rule. Accordingly, defendant Gladstone’s motion for summary judgment is timely made and the court may properly address the merits of defendant Gladstone’s application.

Section 3212(b) allows summary judgment when the movant shows entitlement to judgment as a matter of law and the opponent raises no triable issue of fact.

Maspeth Federal Savings & Loan Ass'n v. Rebecca Ovadia Enterprises, Inc. · filed 1997-12-08(b)

The plaintiff has demonstrated its entitlement to judgment in its favor as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). In response, the appellant has failed to proffer any evidence to show the existence of a triable issue of fact.

Section 3212(a)’s amended 120-day deadline applies to pending cases; when a summary judgment motion is made after January 1, 1997 and the note of issue was filed before that date or was never filed, the period runs from January 1, 1997.

Auger v. State · filed 1997-12-18(a)

... that in those cases where the summary judgment motions were made after January 1, 1997 and the notes of issue were filed prior to this effective date, or, as here, no note of issue was filed, the 120-day period should run from January 1, 1997.

The 120-day period for making a summary judgment motion under the 1996 amendment to CPLR 3212(a) begins on January 1, 1997, the amendment’s effective date.

Rodriguez v. New York City Health & Hospitals Corp. · filed 1997-12-18(a)

The IAS Court erred in denying the motion, made in March 1997, as untimely. The 120 day period for making a summary judgment motion under the amendment of CPLR 3212 (a) in 1996 begins to run from its effective date of January 1, 1997 {Phoenix Garden Rest, v Chu, 245 AD2d 164 [released herewith].

Once a summary judgment movant meets its initial burden, the opposing party must show a triable issue with admissible evidence or offer an acceptable excuse.

Leonard v. Igoe · filed 1998-02-13

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a triable issue of fact or tender an acceptable excuse for failure to do so.

Under amended CPLR 3212 (a), a post-note-of-issue summary judgment motion made on March 30, 1997 was timely in an action pending on January 1, 1997.

Ginsberg v. New York City Transit Authority · filed 1998-02-24(a)

The instant post-note-of-issue motion for summary judgment, made on March 30, 1997 in an action that was pending on January 1, 1997, was timely under amended CPLR 3212 (a) (see, Phoenix Garden Rest, v Chu, 245 AD2d 164).

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

Rampello v. Cioffi · filed 1998-03-02(b)

We agree with the Supreme Court that the plaintiff met his burden establishing his right to judgment on the third cause of action as a matter of law (see, CPLR 3212 [b]).

Section 3212 permits summary judgment when the moving party establishes entitlement to judgment as a matter of law and the opposing parties fail to raise a triable issue of fact.

Rodriguez v. Vargas · filed 1998-03-02

Vargas established his entitlement to judgment as a matter of law, demonstrating that he was stopped at a traffic light in the northbound lane of North Ocean Avenue in Patchogue when the plaintiff, southbound on the same road, swerved into the northbound lane as the light turned green in order to avoid another vehicle crossing in front of him and collided with the vehicle driven by Vargas.

CPLR 3212 requires a summary judgment movant to show entitlement to judgment as a matter of law with evidence eliminating material factual issues; the opposing party must then show an issue requiring trial.

Jee v. New York Post Co. · filed 1998-03-06

In order 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). The party opposing the motion must then demonstrate the existence of a factual issue requiring a trial of the action.

A summary judgment motion made 62 days after the effective date of the amendment to CPLR 3212(a) is timely.

Gray v. Miller · filed 1998-03-13(a)

Defendants’ motion for summary judgment, made 62 days after the effective date of the amendment to CPLR 3212 (a), is timely (see, Auger v State of New York, 236 AD2d 177; see also, Phoenix Garden Rest, v Chu, 245 AD2d 164).

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

Majtan v. Madison Mutual Insurance · filed 1998-04-30(b)

summary judgment is appropriate when the opponent of such a motion fails to raise a material issue of fact (see, CPLR 3212 [b]).

Section 3212(b) requires the movant to establish entitlement to judgment with admissible evidence; summary judgment is appropriate when the opposing party raises no material issue of fact.

Abbey v. Country-Wide Insurance · filed 1998-05-15(b)

The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment”. ... Consequently, plaintiff has met his burden of proof here. Defendant’s proffer fails to raise any material issue of fact which would preclude summary relief.

Under CPLR 3212(b), summary judgment is warranted when the movant establishes entitlement to judgment as a matter of law and the opposing party fails to raise a triable issue of fact.

Finsterer v. Estreicher · filed 1998-05-18(b)

We agree with the Supreme Court that the defendants established their entitlement to judgment as a matter of law and that the plaintiff failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether she sustained a serious injury as defined by Insurance Law § 5102 (d).

CPLR 3212 permits summary judgment when the movant makes a prima facie showing and the opponent fails to present evidence establishing essential elements of a claim.

Hamilton v. Seigel · filed 1998-05-18

The Supreme Court properly granted the defendant’s motion to dismiss the complaint after he made out a prima facie case for summary judgment. The plaintiff either failed to articulate causes of action at all or failed to come forward with evidence establishing essential elements of the causes of action (see, CPLR 3212; Ferber v Sterndent Corp., 51 NY2d 782).

CPLR 3212(a) permits denial of a summary judgment motion made after a court-ordered deadline when the movant has not sought leave for good cause shown.

Sefel v. Mizzaro's Restaurant, Inc. · filed 1998-06-16(a)

We decline to disturb the motion court’s exercise of discretion in denying defendant’s motion for summary judgment on the ground that it was made more than 31 days after the filing of the note of issue, in violation of the court’s preliminary conference order (CPLR 3212 [a]), and note that defendant did not seek leave of the court to make this untimely motion for good cause shown.

CPLR 3212(b) permits summary judgment on liability when the plaintiff establishes a contract and its breach and the defendant raises no material issue of fact.

Ahlstrom Machinery, Inc. v. Associated Airfreight, Inc. · filed 1998-06-18(b)

Here, our review of the contract and plaintiff’s affidavits in support of its motion convinces us that plaintiff sufficiently demonstrated the existence of a contract and defendants’ breach thereof to warrant the direction of summary judgment in its favor (see, CPLR 3212 [b]). In contrast, defendants have failed to sustain their burden of raising a material issue of fact with respect to their liability under the contract (see, id.; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires a defendant seeking summary judgment on a contract claim to provide sufficient evidence that the claimed contract did not exist.

Jim Longo, Inc. v. Rutigliano · filed 1998-06-22(b)

That evidence was insufficient to establish that the plaintiff had not entered into an oral contract with the Rutiglianos for the excavation and drainage of the site of their new home (see, CPLR 3212 [b]).

Section 3212 permits summary judgment when the movant establishes its claim as a matter of law and the opponent presents no evidence of a material, triable issue of fact.

ALBANK, FSB v. Foland · filed 1998-06-30(b)

Accordingly, the court concludes that the requirements for issuance of summary judgment set forth in CPLR 3212 have been satisfied by plaintiff.

CPLR 3212(a) requires a summary judgment motion to be filed within 120 days after the note of issue is filed.

Krug v. Jones · filed 1998-07-27(a)

A 1996 amendment to CPLR 3212 (a), effective January 1, 1997, requires the filing of a motion for summary judgment within 120 days of the filing of the note of issue (see, CPLR 3212 [a], as amended by L 1996, ch 492).

An unvacated preliminary conference order permitting summary judgment motions before trial makes the 120-day time limit in CPLR 3212(a) inapplicable.

Barlow v. Harlem Hospital Center · filed 1998-08-06(a)

The February 3, 1994 preliminary conference order, which permitted summary judgment motions to be made before trial was never vacated; hence, pursuant to CPLR 3212 (a), that order renders that provision’s 120-day time limitation on such motions inapplicable here (see, Phoenix Garden Rest. v Chu, 245 AD2d 164).

For pending cases whose note of issue was filed before the amendment took effect, CPLR 3212(a)’s 120-day period to move for summary judgment runs from the amendment’s effective date.

Filippone v. St. Vincent's Hospital & Medical Center · filed 1998-09-10(a)

We find it far more logical, especially in light of our recent ruling in Phoenix Garden (supra [decided after the motion court rendered its decision herein]), to hold that defendants had until April 30, 1997 to move for summary judgment.

CPLR 3212(a) requires a summary judgment motion within 120 days after the note of issue, but permits the court to shorten that period to as little as 30 days.

Broderick v. Cohen · filed 1998-09-14(a)

The Supreme Court was incorrect in its determination that the defendants’ motion for summary judgment was untimely. A 1996 amendment to CPLR 3212 (a), effective January 1, 1997 ... requires that a motion for summary judgment be made within 120 days after the filing of the note of issue, although the court may shorten that period to as little as 30 days. ... The last deposition in the action was conducted on July 15, 1997, and the defendants’ motion, made approximately 50 days thereafter, was, thus, timely filed.

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.

Shmulevich v. Gabbidon · filed 1998-09-14(a)

CPLR 3212 (a), as amended effective January 1, 1997, requires a motion for summary judgment to be made within 120 days after the filing of the note of issue, except with leave of court on good cause shown (see, CPLR 3212 [a], as amended by L 1996, ch 492).

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

Kern v. City of Rochester · filed 1998-10-02(b)

Nevertheless, plaintiff submitted proof establishing that Local 1071 had four or more employees during the period when the alleged discrimination occurred, and Local 1071 failed to “show facts sufficient to require a trial” of the issue (CPLR 3212 [b]).

Section 3212(b) permits an award of damages on summary judgment when all pleadings are submitted and no issues of fact remain.

Möllerson v. City of New York · filed 1998-10-05(b)

Such damages cannot be awarded on this motion of the pro se plaintiffs but could be awarded when the merits of this action are determined at trial, or on a motion for summary judgment where all pleadings are submitted, and there are no issues of fact (CPLR 3212 [b]).

Under the 1996 amendment to CPLR 3212(a), a summary judgment motion filed more than 120 days after the amendment’s effective date is untimely absent good cause for the delay.

Morales v. One Square Associates, L.P. · filed 1998-10-15(a)

Defendants’ motion for summary judgment was properly denied as untimely because it was filed more than 120 days from the effective date of CPLR 3212 (a) (as amended by L 1996, ch 492; see, Newman v Keuhnelian, 248 AD2d 258, lv denied 92 NY2d 804; Phoenix Garden Rest, v Chu, 245 AD2d 164), and good cause for the delay in filing the motion was not shown (see, Shmulevich v Gabbidon, 253 AD2d 756; Borelli v Gegaj, 248 AD2d 299).

Section 3212(a) bars a summary judgment motion made more than 120 days after the 1997 amendment took effect, even if the note of issue was filed earlier, unless good cause for the delay is shown.

Anzalone v. Varis · filed 1998-10-19(a)

The defendants’ motion for summary judgment, which was made in November 1997, was properly denied as untimely, as the motion was made more than 120 days after the effective date of the amendment to CPLR 3212 (a) and without a showing of good cause for the delay (see, Krug v Jones, 252 AD2d 572; Borelli v Gegaj, 248 AD2d 299; Phoenix Garden Rest. v Chu, 245 AD2d 164; Auger v State of New York, 236 AD2d 177, 179-180).

Summary judgment is appropriate when no triable issues of fact preclude judgment for the moving party.

Hendrick Hudson Central School District v. Falinski · filed 1998-10-26

No triable issues of fact existed precluding summary judgment in favor of the respondents (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557).

Under CPLR 3212(b), a summary judgment movant must establish entitlement to judgment as a matter of law, and the motion must be denied if the opponent shows facts requiring a trial.

Press v. Lozier, Inc. · filed 1998-10-26(b)

In determining the instant motion for summary judgment, the Town must establish its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. On the other hand, such motion shall be denied if plaintiff shows facts sufficient to require a trial of an issue of fact. (CPLR 3212 [b].) In reviewing this case, with all the papers submitted in opposition and in support, the Town has established its entitlement to summary judgment against Press as a matter of law.

CPLR 3212(a) requires a summary judgment motion within 120 days after the note of issue is filed; for a note filed before January 1, 1997, the deadline is 120 days after that date, and counsel’s other workload does not justify a late motion.

DiFusco v. Wal-Mart Discount Cities · filed 1998-11-13(a)

Supreme Court abused its discretion in granting defendant leave to make a motion for summary judgment six months after January 1, 1997, the effective date of the amendment to CPLR 3212 (a). ... Accepting the excuse proffered in this case, however, would be tantamount to having no rule at all.

Section 3212(a) gave parties whose notes of issue were filed before the January 1, 1997 amendment took effect 120 days from that date to move for summary judgment as of right.

Granados v. New York City Housing Authority · filed 1998-11-24(a)

The note of issue in this matter was filed on September 17, 1996, prior to the January 1, 1997 effective date of the amendment to CPLR 3212 (a), which imposes a limit of 120 days from filing of the note of issue for making motions for summary judgment without obtaining leave of court upon a showing of good cause. ... This extended defendant’s time to so move until April 30, 1997. Since the instant motion was made on May 12, 1997, it was untimely.

Section 3212(a)'s time limit for a summary judgment motion runs from the filing of a note of issue, so the motion was timely when no note of issue had been filed.

Clearwater Realty Co. v. Hernandez · filed 1998-12-10(a)

The time limit for bringing a summary judgment motion runs from the date a note of issue is filed, not the date issue is joined (CPLR 3212 [a]); as no note of issue was ever filed, the motion was timely brought.

Section 3212(a)’s 120-day deadline applies to a summary judgment motion made more than 120 days after the amendment took effect, even when the note of issue was filed before that date.

Haqq v. Synergy Gas · filed 1998-12-16(a)

The appellants’ motion for summary judgment was properly denied as untimely, since the note of issue was filed prior to the effective date of the amendment, and the motion was made more than 120 days after the effective date of the amendment (see, Krug v Jones, 252 AD2d 572; Phoenix Garden Rest. v Chu, 245 AD2d 164; see also, Wade v Byung Yang Kim, 250 AD2d 323).

A summary judgment motion is timely under CPLR 3212(a) when its notice of motion is served within 120 days after the note of issue is filed, even if the return date falls later.

Russo v. Eveco Development Corp. · filed 1998-12-28(a)

The Supreme Court erred in denying the defendants’ motion for summary judgment as untimely under CPLR 3212 (a). To be timely, a motion for summary judgment must be made no later than 120 days after the filing of the note of issue (see, CPLR 3212 [a]). A motion is made when a notice of motion is served (see, CPLR 2211). Although the return date of the defendants’ motion was more than 120 days after the filing of the note of issue, the notice of motion was properly served on the plaintiff pursuant to CPLR 2103 (b) within the 120-day period, and thus, the motion was timely.

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

South End Distributing Corp. v. Hornell Brewing Co. · filed 1999-01-21(b)

On a motion for summary judgment the “proponent * * * 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; Scala v Veit, 253 AD2d 551; CPLR 3212 [b]). ... In this case, Hornell has failed to demonstrate by evidentiary facts that in terminating its distribution agreement with South End it complied with the written notice and opportunity to cure provisions of section 55-c.

Summary judgment is premature when a final accounting is needed to determine the value of disputed estate assets.

In re the Estate of Martin · filed 1999-03-04

In this regard, we note that inasmuch as the final accounting has yet to occur, it was premature for Surrogate’s Court to grant respondent summary judgment dismissing the petition with prejudice as to the value of the proceeds from the New York Yankees’ contract, the Philmont Center Limited Partnership interest and any royalties or other proceeds due from books authored by decedent and, further, to estop petitioners from raising any issues as to the value of such assets upon the final accounting.

Under CPLR 3212(b), summary judgment is warranted when the movant establishes entitlement to judgment as a matter of law and the opposing party raises no triable issue of fact.

Household Finance Realty Corp. v. Protovin · filed 1999-03-08(b)

We agree with the Supreme Court that the respondent established that it was entitled to judgment as a matter of law, and that the appellants have failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212(a) permits a summary judgment motion within 120 days after the note of issue is filed unless the court sets a shorter deadline.

Rodriguez v. Presbyterian Hospital · filed 1999-03-11(a)

Court records reveal that Riverdale’s motion, in December 1997, was made within 120 days of the September filing of the note of issue. The IAS Court denied Riverdale’s motion without reaching the merits, citing contravention of the 30-day deadline it had imposed for substantive motions. But the record reveals no preliminary order setting such a deadline. Nor do the published rules of this particular IAS Part shorten the deadline for substantive motions from that established in the CPLR. The motion was timely, and should have been decided on the merits.

Section 3212 requires a summary judgment motion within 120 days after the note of issue is filed; for a note of issue filed before January 1, 1997, the period runs from that date.

Daughtry v. Rosengarten · filed 1999-03-19(a)

Under the 1996 amendment to CPLR 3212, effective on January 1, 1997, a summary judgment motion must be made no later than 120 days after the filing of the note of issue. ... Defendant’s motion for summary judgment, made on or about November 14, 1997, was well in excess of the 120-day period within which it could have made the motion, and was therefore untimely.

When a court extends the note-of-issue filing date without setting a new deadline for dispositive motions, CPLR 3212(a)’s 120-day period governs.

Kampf v. Bank of New York · filed 1999-03-30(a)

The fact that the initial conference order had set dates certain (for filing note of issue and making dispositive motions) that were 31 days apart did not mean that the court had permanently reduced the interval to 30 days. Once the case was restored to the calendar with a new date certain for filing note of issue, without any reference to a new deadline for dis-positive motions, the appropriate deadline reverted to that set forth in the CPLR (viz., 120 days).

CPLR 3212(b) requires evidence opposing summary judgment to raise a triable issue of fact.

Mero v. Bauer · filed 1999-04-05(b)

The medical evidence relied upon by the plaintiffs in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]).

A summary judgment motion is not untimely under CPLR 3212(a) when an earlier note of issue was effectively nullified by removal of the action from the trial calendar.

Bono v. Barzallo · filed 1999-04-26(a)

Nonetheless, we find that the motion was not untimely pursuant to CPLR 3212 (a), in light of the fact that the 1995 note of issue was, in essence, nullified when the plaintiffs action was removed from the trial calendar on April 29, 1997 (see, Attilio v Gladstone, 174 Misc 2d 759).

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

Gribbin v. Kearns · filed 1999-04-26(a)

The Supreme Court properly denied as untimely that branch of the defendants’ motion which was for summary judgment dismissing the complaint (see, CPLR 3212 [a]; Deinhardt v Vought, 258 AD2d 432; Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320).

Under CPLR 3212(b), a party opposing summary judgment must present competent proof that raises a triable question of fact.

D'Antonio v. Samuels · filed 1999-05-03(b)

In their opposition to the defendants’ motions for summary judgment, the plaintiffs failed to rebut the defendants’ showing that they did not have a viable personal injury claim (see, e.g., Garvin v Rosenberg, 204 AD2d 388), and failed to establish the contrary by competent proof so as to raise a triable question of fact on this issue (see, CPLR 3212 [b]).

The 120-day deadline for moving for summary judgment does not apply when the note of issue was filed before the amendment establishing that deadline took effect.

Nagi v. New York Property Insurance Underwriting Ass'n · filed 1999-05-07(a)

We note that, contrary to plaintiff’s contention, defendant’s motion was not untimely. The note of issue was filed before the effective date of the amendment to CPLR 3212 (a), which requires that a motion for summary judgment be made no later than 120 days after the filing of the note of issue.

Section 3212(a) permits a court to deem slightly late cross motions timely when they follow a timely summary judgment motion and cause no prejudice.

Chisolm v. New York Hospital · filed 1999-05-18(a)

However, said cross motions were made upon the original timely motion of Guttman and the untimeliness is de minimis. Plaintiffs can demonstrate no prejudice, as a trial in this matter will not be delayed by the exercise of judicial discretion permitted in CPLR 3212 (a) to extend the time to move for summary judgment.

Under CPLR 3212(b), summary judgment is warranted when the movant makes a prima facie showing and the opposing evidence raises no triable issue of fact.

Francar Co. v. Eileen & Larry Austin Real Estate Corp.en · filed 1999-05-24(b)

The defendant Austin Travel Corp. thus made out a prima facie case that it was not a tenant and that it therefore bore no liability for damages resulting from a breach of the lease. The evidence which the plaintiff submitted in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Roberts v. Conti Cleaners · filed 1999-05-25(a)

Defendant Conti’s cross motion for summary judgment was properly denied as untimely since it was made more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]) ... and there was no showing of good cause warranting the motion’s consideration despite the delay (see, Rosario v Kenyon & Son, 258 AD2d 265).

Section 3212(f) permits denial of summary judgment without prejudice to renewal after discovery when relevant facts are exclusively within the opposing party’s knowledge.

Babcock v. Roche · filed 1999-06-21(f)

These facts are exclusively within the knowledge of the plaintiff and, therefore, summary judgment should have been denied, without prejudice to renewal upon the completion of discovery (see, CPLR 3212 [f]; Hentschel v Campbell Carpet Servs., 256 AD2d 500).

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 shown.

Johnson v. Town of Fishkill · filed 1999-06-21(a)

Pursuant to CPLR 3212 (a), “[a]ny party may move for summary judgment in any action, after issue has been joined * * * such motion shall be made no later than [120] days after the filing of the note of issue, except with leave of court on good cause shown”. The plaintiffs’ summary judgment motion, filed more than 270 days after the filing of the note of issue, was untimely. The court erred in granting the late motion, which was made without leave and without good cause shown for the delay (see, Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320).

Under CPLR 3212(b), a party seeking partial summary judgment must show that no material factual issue remains and that it is entitled to judgment as a matter of law.

Coogan v. Ed's Bargain Buggy Corp. · filed 1999-06-28(b)

The Supreme Court erred in granting the plaintiffs’ motion for partial summary judgment on the issue of liability, as the plaintiffs failed to demonstrate the absence of any material issues of fact and failed to demonstrate entitlement to partial summary judgment as a matter of law (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

CPLR 3212 permits summary judgment when a claim or defense is sufficiently established for judgment as a matter of law and no material factual issue remains for trial.

Igoe v. Pataki · filed 1999-06-28

Under CPLR 3212, a motion for summary judgment will be granted if the cause of action or defense is adequately established so that a court may direct judgment as a matter of law.

Under CPLR 3212(f), a party claiming that summary judgment is premature must show that discovery could reveal an identifiable issue of fact.

State v. County of Erie · filed 1999-10-01(f)

Although defendant contends that the motion is premature (see, CPLR 3212 [f]), it failed to demonstrate that discovery would give rise to an identifiable issue of fact (see, Gardner v Honda Motor Co., 214 AD2d 1024, 1025).

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

Napoli v. New York City Transit Authority · filed 1999-10-04(b)

After the defendant established its prima facie entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether either of them sustained a serious injury within the meaning of Insurance Law § 5102 (d).

CPLR 3212(b) requires a summary judgment movant to make a prima facie showing, after which the opponent must raise a triable issue of fact.

Price v. Melons · filed 1999-10-04(b)

The submissions of the defendant, including, inter alia, the affirmed reports of two physicians who examined the plaintiff on behalf of the defendant, established a prima facie case (see, CPLR 3212 [b]) that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In opposition, the plaintiff failed to raise a triable issue of fact (see, Hewan v Callozzo, 223 AD2d 425; Zuckerman v Karagjozi, 247 AD2d 536).

Under CPLR 3212(f), summary judgment may be premature when discovery remains incomplete.

Hoxha v. City of New York · filed 1999-10-12(f)

Under the circumstances of this case, since discovery has not been completed, granting summary judgment would be premature at this point (see, CPLR 3212 [f|).

CPLR 3212(a) requires good cause for a summary judgment motion made more than 120 days after the note of issue is filed; vague and conclusory claims do not suffice.

Neves v. Port Authority of New York & New Jersey · filed 1999-10-12(a)

The vague and conclusory claims made by defense counsel in support of the application failed to demonstrate the existence of “good cause” to permit a belated motion to be made more than 120 days after the filing of the note of issue (CPLR 3212 [a]; see, Deinhardt v Vought, 258 AD2d 432; Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320).

Section 3212 requires a summary judgment movant to make a prima facie showing of entitlement to judgment; the opponent must then present admissible evidence raising a triable issue of fact.

Halliday v. Norton Co. · filed 1999-10-14

These defendants also proffered a prima facie showing of entitlement to summary judgment and plaintiffs’ submissions in opposition to the motions were devoid of adequate evidence in admissible form to counter defendants’ proof.

On a summary judgment motion, the moving party must make a prima facie showing, and the opposing party must raise a triable issue of fact.

Calabrese v. Godin · filed 1999-10-25(b)

The defendants’ submissions made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The evidence which the plaintiff submitted in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Under CPLR 3212(b), a defendant who establishes entitlement to judgment as a matter of law meets the initial burden on a summary judgment motion; the plaintiff must then raise a factual issue that precludes judgment.

Carrasco v. Monteforte · filed 1999-11-15(b)

In presenting this evidence, the defendant sustained his burden of proving his entitlement to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Brown v City of New York, 237 AD2d 398).

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

Maggiolo v. GA Insurance · filed 1999-11-15(b)

After the plaintiff established his prima facie entitlement to judgment as a matter of law, the defendant failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the alleged loss was excluded from coverage under the terms and provisions of the subject policy.

CPLR 3212(b) requires the moving party to establish entitlement to judgment as a matter of law; the opposing party must then offer admissible evidence raising a triable issue of fact.

Cadigan v. Rockbottom Stores, Inc. · filed 1999-11-29(b)

Contrary to the plaintiffs’ contention, the defendants established prima facie that they were entitled to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Since the plaintiffs failed to offer admissible evidence in opposition to the motions sufficient to raise a triable issue of fact, the Supreme Court properly granted summary judgment to the defendants (see, Zuckerman v City of New York, supra).

CPLR 3212(a)’s 120-day limit for summary judgment motions is not triggered while an action is off the trial calendar.

Lebreton v. New York City Transit Authority · filed 1999-12-06(a)

This action was no longer on the trial calendar when the amendment to CPLR 3212 (a), imposing a time limitation on summary judgment motions, went into effect on January 1, 1997. ... Since the case was not on the trial calendar, the 120-day time limitation was not triggered and the cross motion was timely.

Section 3212(b) permits summary judgment on a foreclosure complaint when the circumstances warrant it.

Federal Home Loan Mortgage Ass'n v. Weber · filed 1999-12-20(b)

Under the circumstances of this case, the Supreme Court properly granted the plaintiffs motion for summary judgment against the appellant (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

Under CPLR 3212, proof of the contract, note, guarantees, and default establishes entitlement to summary judgment and requires the opposing party to show a triable issue of fact with admissible evidence.

Gangi v. Solgar Co. · filed 1999-12-20

On its motion for summary judgment on its first and second counterclaims, the defendant Solgar Vitamin and Herb Company, Inc., s/h/a Solgar Co., Inc. (hereinafter Solgar), demonstrated its entitlement to judgment as a matter of law by submitting proof of the underlying contract, promissory note, guarantees, and the appellant’s default (see, CPLR 3212; Capital Circulation Corp. v Gallop Leasing Corp., 248 AD2d 578). It was thus incumbent upon the appellant to demonstrate, by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense of the counterclaims (see, George L. Penny, Inc. v Zaweski, 254 AD2d 255; Colonial Commercial Corp. v Breskel Assocs., 238 AD2d 539).

Under CPLR 3212(b), summary judgment is warranted when the movant shows entitlement to judgment as a matter of law and the opposing party fails to raise a triable issue of fact.

Rego Park Nursing Home v. Cigna Property & Casualty · filed 1999-12-27(b)

Pacific also demonstrated its entitlement to summary judgment as a matter of law regarding the claims of Lydia Fong and Mary Johnson by showing that those claims did not fall within the provisions of the policy, and Rego Park failed to present any evidence sufficient to raise a triable issue of fact precluding summary judgment (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 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 shown.

Morhart v. City of New York · filed 1999-12-27(a)

CPLR 3212 (a), as amended effective January 1, 1997, requires a motion for summary judgment to be made within 120 days after the filing of the note of issue, except with leave of court on good cause shown (see, CPLR 3212 [a], as amended by L 1996, ch 492).

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

Rabadi v. Atlantic & Pacific Tea Co. · filed 2000-01-10(a)

The amended version of CPLR 3212 (a), which became effective January 1, 1997, requires that a motion for summary judgment be made within 120 days after the note of issue is filed, “except with leave of court on good cause shown” (CPLR 3212 [a], as amended by L 1996, ch 492). Although the defendant’s motion was untimely, it established good cause for the delay, and the plaintiffs failed to demonstrate any prejudice.

CPLR 3212 (a) bars untimely motions for summary judgment.

Shifren v. Scheiner · filed 2000-02-07(a)

The plaintiffs’ motion was time-barred pursuant to CPLR 3212 (a).

A summary judgment movant must show entitlement to judgment as a matter of law and the absence of material factual issues; the opposing party must then present admissible evidence of an issue requiring trial.

Transmedia Restaurant Co. v. 33 E. 61st Street Restaurant Corp. · filed 2000-02-07

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.

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

Russo v. Sipin · filed 2000-02-22(a)

The motion was brought within 120 days of the filing of the note of issue and there are no issues of fact with regard to the appellants’ liability (see, CPLR 3212 [a]; Zuckerman v City of New York, 49 NY2d 557).

CPLR 3212(a) sets a 120-day limit for moving for summary judgment.

Montenegro v. City of New York · filed 2000-03-02(a)

The motion was untimely even if the 120-day limit in CPLR 3212 (a) were to be measured from the return of the last deposition transcript rather than the filing of the note of issue (see, Kearns v City of New York, 263 AD2d 412).

Section 3212(b) requires evidence opposing summary judgment to raise a triable issue of fact.

Reynolds v. Eligson · filed 2000-03-20(b)

The medical evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]; Mobley v Riportella, 241 AD2d 443).

Section 3212(a) permits a court to grant leave to move for summary judgment in its discretion.

Lopez v. New York City Health & Hospitals Corp. · filed 2000-03-27(a)

In any event, the Supreme Court providently exercised its discretion in granting the defendants’ motion for leave to move for summary judgment (see, CPLR 3212 [a]; Olzaski v Locust Val. Cent. School Dist., 256 AD2d 320; Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778).

On a summary judgment motion, the court draws reasonable inferences in favor of the nonmoving party and leaves credibility issues to the fact finder.

Doe v. Smith · filed 2000-03-31

However, on a summary judgment motion the “court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.”

CPLR 3212 (f) does not permit postponing summary judgment merely because further discovery might reveal helpful evidence.

Morissaint v. Raemar Corp. · filed 2000-04-17(f)

We reject the appellants’ argument that summary judgment was granted prematurely. The belief that additional discovery might reveal something helpful to their case does not provide a basis pursuant to CPLR 3212 (f) for postponing a determination of summary judgment (see, Cooper v Milton Paper Co., 258 AD2d 614).

Section 3212(a) sets a 120-day period for post-note-of-issue summary judgment motions; a late motion may be denied absent good cause for the delay.

Keeley v. Berley Realty Corp. · filed 2000-04-18(a)

Abco’s cross motion for summary judgment, made well after the 120-day period for making a post-note-of-issue motion for summary judgment under CPLR 3212 (a), as well as the time for making a cross motion under CPLR 2215, was properly denied absent any showing of good cause for the lateness.

Section 3212(a) allows a summary judgment motion within 120 days after a note of issue is filed when the operative scheduling order sets no shorter deadline.

Anzalone v. Pan-Am Equities · filed 2000-04-18(a)

CPLR 3212 (a) provides that a summary judgment motion may be made within 120 days after the filing of a note of issue, unless the court has shortened that deadline to a date no less than 30 days after the filing. ... Once the case was restored to the discovery calendar with a new schedule for filing the note of issue, and with no reference to a new deadline for dispositive motions, the appropriate deadline reverted to the 120 days set forth in the CPLR ... Defendants’ motion in December of that year was thus timely.

Section 3212(a) permits a party to move for summary judgment after a note of issue is filed when the trial is scheduled more than two months later.

Hunt v. New York City Housing Authority · filed 2000-05-02(a)

Nor was defendant deprived of its right to move for summary judgment where the trial was scheduled more than two months after the note of issue was filed (CPLR 3212 [a]).

Section 3212(b) does not permit summary judgment dismissing a contribution claim when the record does not establish as a matter of law that the plaintiff's injuries can be reasonably divided among the alleged tortfeasors.

Resnick v. Brandon · filed 2000-05-22(b)

On the record before us, it cannot be said as a matter of law that the plaintiffs injuries are capable of any reasonable or practicable ... division or allocation among the third-party plaintiffs and the third-party defendants (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Ravo v Rogatnick, supra, at 310).

Section 3212(b) requires the party opposing summary judgment to raise a triable issue of fact after the movant makes a prima facie showing.

Phojanakong v. Eterno · filed 2000-05-30(b)

The evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]).

CPLR 3212(b) requires summary judgment when no facts warrant a trial on any theory of liability.

Truiano v. Liberty Lines Transit, Inc. · filed 2000-06-06(b)

Since no facts are shown sufficient to warrant a trial on any theory of liability, summary judgment must be granted (Alvarez v Prospect Hosp., 68 NY2d 320; CPLR 3212 [b]).

CPLR 3212(a) required a summary judgment motion in a case with a note of issue filed before January 1, 1997, to be filed within 120 days after that date unless the movant showed good cause for delay.

Barksdale v. New York City Transit Authority · filed 2000-06-08(a)

As a matter of procedure, the motion should have been denied as untimely. The Authority failed to file it within 120 days after January 1, 1997, as required by CPLR 3212 (a) in cases in which the note of issue was filed before that date (Phoenix Garden Rest. v Chu, 245 AD2d 164), and failed to establish good cause for the delay (Borelli v Gegaj, 248 AD2d 299).

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

Clifford v. Harrow Stores, Inc. · filed 2000-07-03(a)

A motion for summary judgment must be made within 120 days of the filing of a note of issue “except with leave of court on good cause shown” (CPLR 3212 [a]; see, Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124). The appellants’ summary judgment motion, filed approximately 18 months after the filing of the note of issue, was untimely.

Section 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law; the opponent can defeat the motion with admissible evidence raising a triable issue of fact.

Boston v. Dunham · filed 2000-07-13(b)

In the first instance the movant must provide a prima facie showing by sufficient evidence that they are entitled to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), thereby shifting the burden to the opposing party to demonstrate by evidentiary proof in admissible form that a triable issue of fact exists (see, Zuckerman v City of New York, 49 NY2d 557, 562; Iwaszkiewicz v Callanan Indus., 258 AD2d 776, 777; see also, CPLR 3212 [b]). While we find that both defendants satisfied their initial burden of demonstrating entitlement to judgment as a matter of law, plaintiff has responded with sufficient evidence in admissible form to create triable issues of fact as to Dunham’s comparative negligence.

Section 3212 requires a party seeking summary judgment to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Guadagnoli v. Seaview Radiology, P. C. · filed 2000-07-17

In order to obtain summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

Section 3212(a) generally required a summary judgment motion to be made within 120 days after January 1, 1997, when the note of issue was filed before that date, unless the movant showed good cause for delay.

Harrison v. City of New York · filed 2000-08-21(a)

... a motion for summary judgment should, in general, have been made within 120 days after January 1, 1997 (Bono v Barzallo, 260 AD2d 592). Masons did not move for summary judgment dismissing the first cause of action until nearly two years after January 1, 1997, and it failed to establish good cause as to why this motion could not have been timely made. Therefore, the Supreme Court properly denied the motion (see, Haqq v Synergy Gas, 256 AD2d 442; CPLR 3212 [a]).

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

Di Rosario v. Williams · filed 2000-10-16(a)

Contrary to the plaintiffs contention, Williams’ motion, made within 120 days after filing of the new note of issue, was timely (see, CPLR 3212 [a]; Kampf v Bank of N. Y., 259 AD2d 439).

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

Jump v. Niederman · filed 2000-10-16(b)

As the plaintiff failed to raise an issue of fact in opposition to the defendants’ prima facie showing of entitlement to judgment as a matter of law, the Supreme Court properly granted summary judgment to the defendants (see, CPLR 3212 [b]; ... Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) permits summary judgment when the movant makes a prima facie showing of entitlement to judgment and the opposing party fails to raise a triable issue of fact.

Prado v. City of New York · filed 2000-10-30(b)

In this case, after the appellant made a prima facie showing of his entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the sidewalk on which the plaintiff Emilio Prado allegedly slipped and fell was made more hazardous as a result of the appellant’s conduct.

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

Welch Foods, Inc. v. Wilson · filed 2000-11-13(a)

Pursuant to that statute, unless the court provides otherwise, a motion for summary judgment shall be made no later than 120 days after the filing of the note of issue “except with leave of court on good cause shown.” The court has discretion to consider motions made after the 120 days ... and we conclude that the court did not abuse its discretion in allowing the motion by defendant.

Under CPLR 3212(a), a court may consider a late summary judgment motion in one jointly tried action when the same motion is timely in a companion action.

Siegel v. Siler · filed 2000-11-17(a)

Here, a fortiori, the timely summary judgment motion in one action permits consideration of the exact same, but untimely, motion in another companion action set for a joint trial.

Under CPLR 3212(a), removal of an action from the trial calendar can nullify an earlier note of issue, making a later summary judgment motion timely.

Alexander v. City of New York · filed 2000-11-20(a)

However, since the 1996 note of issue was, in essence, nullified when the plaintiffs’ action was removed from the trial calendar due to the unavailability of their expert in July 1999, the motion for summary judgment was timely pursuant to CPLR 3212 (a) (see, Bono v Barzallo, supra; Attilio v Gladstone, 174 Misc 2d 759).

Section 3212(b) requires a party opposing summary judgment to raise a triable issue of fact.

Merkel v. Zheng-Fredericks · filed 2000-12-04(b)

Thus, the plaintiffs’ opposition papers failed to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Browne v. Stanley · filed 2000-12-11(b)

The Supreme Court properly granted the plaintiff’s motion for summary judgment. The parties do not dispute that the plaintiff established her entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

Section 3212(b) requires a summary judgment movant to make a prima facie showing before the burden shifts to the opposing party to raise a triable issue of fact.

Greenberger v. Philip's Free-Port Associates · filed 2000-12-11(b)

The evidence submitted by the defendants in support of their respective motion and cross motion established a prima facie case that they did not create the alleged hazardous condition, and did not have either actual or constructive notice of it (see, CPLR 3212 [b]).

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

Vets North, Inc. v. Libutti · filed 2000-12-18(b)

In light of the defendants’ prima facie showing of their entitlement to judgment as a matter of law, and because Vets North has not sustained its burden of raising a triable issue of fact, the complaint is dismissed (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires a party opposing summary judgment to raise a triable issue of fact after the movant makes a prima facie showing.

Goldblatt v. LaShellda Maintenance Co. · filed 2000-12-26(b)

The plaintiffs’ opposition papers were therefore insufficient to defeat the prima facie showing by LaShellda of its entitlement to summary judgment (see, CPLR 3212 [b]).

Evidence submitted in opposition to summary judgment must raise a triable issue of fact.

Nagayeva v. Drimmer · filed 2000-12-26(b)

The affirmation of the plaintiff’s expert neurologist was the only medical evidence submitted in opposition to the motion, and it failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212(f) permits denial of summary judgment when facts needed to oppose the motion are in the moving party’s exclusive possession or control.

Greenidge v. HRH Construction Corp. · filed 2001-01-25(f)

While plaintiff has not come forward with evidence to refute testimony that Forest Electric was generally responsible for performing electrical work, information concerning the scope of the subcontractor’s duties as well as the extent to which it was subject to supervision by the general contractor is within the exclusive possession and control of defendant HRH (CPLR 3212 [f]; see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506 [summary judgment premature despite affidavit of defendant’s employee disclaiming supervision of subcontractors]). Summary judgment is therefore unwarranted, particularly in view of the asserted absence of documentation concerning the subcontractors participating in the renovation project (Esposito v Metropolitan Transp. Auth., 264 AD2d 370 [failure to identify owner-operator of bus]).

Section 3212 precludes summary judgment when unresolved issues of law and fact require trial.

Taubin v. City of New York · filed 2001-01-25

Based upon the foregoing, the court finds that the remaining claims between plaintiff and the defendant Board of Education will require the resolution of numerous issues of law and fact, thus precluding any relief under CPLR 3212.

CPLR 3212(b) requires a summary judgment movant to show entitlement to judgment as a matter of law; the opposing party must then raise a triable issue of fact.

Katras v. Etan Furniture, Inc. · filed 2001-01-29(b)

The moving defendants made a prima facie showing that they were entitled to judgment as a matter of law by offering sufficient evidence demonstrating the absence of any issue of fact with respect to the creation of the alleged dangerous condition or actual or constructive notice thereof (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiff failed to raise a triable issue of fact (see, Lustgarten v Oceanside Union Free School Dist., 277 AD2d 430).

Under CPLR 3212(a), a summary judgment motion is not untimely when removal of the action from the trial calendar effectively nullifies the note of issue.

Negron v. Helmsley Spear, Inc. · filed 2001-02-06(a)

When this action was removed from the trial calendar in April 1999 due to the unavailability of plaintiffs expert, her note of issue was, in effect, nullified (see, Alexander v City of New York, 277 AD2d 334). Thus, defendants’ motion and cross-motion for summary judgment were not untimely pursuant to CPLR 3212 (a).

A party opposing summary judgment must demonstrate a triable issue of fact.

Logan v. County of Nassau · filed 2001-02-13(b)

In opposition, Asplundh failed to demonstrate the existence of a triable issue of fact (see, CPLR 3212 [b]).

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

Semon v. Christensen · filed 2001-03-05(b)

In opposition to the defendants’ motion for summary judgment dismissing the complaint, in which they made a prima facie showing of their entitlement to judgment as a matter of law, the plaintiffs failed to sustain their burden of raising a triable issue of fact (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Liberman v Gelstein, 80 NY2d 429, 434; Freihofer v Hearst Corp., 65 NY2d 135, 142-143; Phillips v Sun Oil Co., 307 NY 328, 330).

Section 3212(a) permits summary judgment when the movant establishes entitlement to judgment as a matter of law and the opponent fails to raise a material issue of fact requiring a trial.

Estate of Xiang Ding Wu v. Town of Brookhaven · filed 2001-03-19(a)

These defendants established their entitlement to judgment as a matter of law and the plaintiff failed to raise a material issue of fact requiring a trial (see, CPLR 3212 [a]; Zuckerman v City of New York, 49 NY2d 557).

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

Zwecker v. Clinch · filed 2001-01-22(a)

The Supreme Court providently exercised its discretion in granting the respondents leave to move for summary judgment, even though more than 120 days had elapsed since the note of issue was filed (see, CPLR 3212 [a]; Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778; Surace v Lostrappo, 176 Misc 2d 408; see also, Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124).

CPLR 3212 requires a party opposing summary judgment to present evidentiary facts sufficient to raise a triable issue of fact.

Rampello v. Cioffi · filed 2001-04-02

To defeat the plaintiffs motion for summary judgment, it was incumbent on the defendants to disclose evidentiary facts sufficient to raise a triable issue of fact as to whether the conveyance was supported by fair consideration (see, Debtor and Creditor Law §§ 272, 273-a; CPLR 3212).

When a note of issue predates the January 1, 1997 amendment to CPLR 3212(a), a summary judgment motion made more than 120 days after that date is untimely.

Kaminski v. Modern Italian Bakery of West Babylon · filed 2001-04-23(a)

The Supreme Court properly concluded that the motion was time-barred since it was made significantly later than 120 days after January 1, 1997, the effective date of the amendment to CPLR 3212 (a) (see, Stransky v Tannenbaum, 262 AD2d 301).

Section 3212(a) requires a summary judgment motion within 120 days after the note of issue is filed, but permits an extension for good cause when there is no prejudice.

La Duke v. Albany Motel Enterprises, Inc. · filed 2001-04-26(a)

Considering that defendants moved for summary judgment only a few days beyond the 120-day period specified in CPLR 3212 (a) and provided a reasonable explanation for the delay, and in the absence of any showing of prejudice to plaintiffs, we conclude that Supreme Court did not abuse its discretion.

Unsupported speculation is insufficient to defeat a motion for summary judgment under CPLR 3212(b).

Child v. Suffolk County Water Authority · filed 2001-05-21(b)

Mere speculation that the appellants may have failed to take some unspecified measure to avoid the accident, or in some other way contributed to the occurrence of the accident, without evidentiary support in the record, is insufficient to defeat a motion for summary judgment (see, CPLR 3212 [b]; Mehring v Cahill, 271 AD2d 415).

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

Aydelotte v. BQE Racquetball Club, Inc. · filed 2001-05-29

BQE established its entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact (see, CPLR 3212).

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

Delewin v. Transtechnology Corp. · filed 2001-06-11(b)

In response to the defendant’s prima facie showing of its entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the accident was proximately caused by any of the alleged defects in the subject walkway (see, CPLR 3212 [b]; Weathers v Grix, 273 AD2d 463; Plotsker v Whitey Ford’s Grand Slam, 263 AD2d 534, 535; Rubin v Hicksville Union Free School Dist., 247 AD2d 601, 602-603).

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

Marable v. City of New Rochelle · filed 2001-06-11(b)

The plaintiffs opposition papers were insufficient to raise a triable issue of fact in response to the appellant’s prima facie showing that he did not make special use of the sidewalk (see, CPLR 3212 [b]; Pick v Krupp, 272 AD2d 459; Waldron v City of New York, 260 AD2d 471; Winberry v City of New York, supra).

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

Catinella v. Mel Weitz Supermarkets, Inc. · filed 2001-08-13(b)

Eagle demonstrated its prima facie entitlement to judgment as a matter of law (see, CPLR 3212 [b]). In response, the plaintiff failed to raise a triable issue of fact as to whether Eagle maliciously interfered with the plaintiff’s contract with LIS (see, Waste Servs. v Jamaica Ash & Rubbish Removal Co., 262 AD2d 401).

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

Thaler v. Aspen Ready Mix Corp. · filed 2001-09-24(b)

The medical evidence submitted by the plaintiffs in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]).

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

Watson v. Horizon Developers, Inc. · filed 2001-09-24(a)

The defendant demonstrated its prima facie entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant either created or had actual or constructive notice of the allegedly defective condition of the roof which caused it to collapse during a fire (see, CPLR 3212 [a]).

A party opposing summary judgment must submit competent evidence that raises a triable issue of fact.

Rossi v. Gamper · filed 2001-10-15(b)

The only competent medical evidence which the plaintiff submitted in opposition to the motion, an affidavit sworn to by the plaintiffs treating chiropractor failed to raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212(b) requires a party opposing summary judgment to submit competent evidence that raises a triable issue of fact.

Montanaro v. Kandel · filed 2001-11-13(b)

In opposition to the motions, the only competent medical evidence submitted by the plaintiffs, an affidavit sworn to by a doctor of osteopathy who had examined the infant plaintiff three years after the accident and two years after his treatment ended, failed to raise a triable issue of fact (see, CPLR 3212 [b]; Gaddy v Eyler, supra; Grossman v Wright, 268 AD2d 79, 84).

CPLR 3212 allows a summary judgment motion within 120 days after the note of issue is filed; a court may waive its shorter filing rule.

Darby v. Avis Rent A Car System, Inc. · filed 2001-12-03

...filed its motion within 120 days after the filing of the note of issue (see, CPLR 3212), the trial court’s more restrictive rule required the parties to file motions for summary judgment within 30 days of the filing of the note of issue. Nevertheless, the Supreme Court has the discretion to waive its own rule and we decline to disturb that discretion, especially in light of the plaintiffs failure to demonstrate any prejudice as a result of the short delay (see, Samuel v A.T.P Dev. Corp., 276 AD2d 685; Goodman v Gudi, 264 AD2d 758; Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778).

On a summary judgment motion, the court must search the record for a triable issue of fact, and the opposing party must present evidence supporting its case.

Dwyer v. Dwyer · filed 2001-12-12

In deciding summary judgment motions, the court must search the record to determine if a triable issue of fact exists, and if so, the motion must be denied. ... However, on a motion for summary judgment, the opposing party must lay bare his/her evidence, as if at trial, to establish his/her respective case.

Section 3212(a) requires a summary judgment motion to be made no later than 120 days after the filing of the note of issue.

Diaz v. New York City Health & Hospitals Corp. · filed 2001-12-17(a)

Contrary to the defendants’ contention that their motion was addressed to the pleadings pursuant to CPLR 3211 (a) (7), the motion was for summary judgment, and therefore it should have been made no later than 120 days after the filing of the note of issue (see, CPLR 3212 [a]).

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

St. Andrews Homeowners Ass'n v. Saint Andrew's Golf Club · filed 2001-12-17(b)

To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented and that the movant is entitled to judgment in his or her favor as a matter of law. This drastic remedy should not be granted where there is any doubt as to the existence of such issues or where the issue is arguable.

A CPLR 3212 movant must show entitlement to judgment as a matter of law and the absence of material factual issues; the opposing party must then offer admissible proof of a material factual dispute.

Howard v. Cahill · filed 2002-01-10

Under CPLR 3212, the party seeking summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Once such a showing is made, the party opposing the motion must produce admissible evidentiary proof to show the existence of a material issue of fact requiring a trial (see, Zuckerman v City of New York, 49 NY2d 557, 562; see also, 6 NYCRR 622.12 [e] [“The motion (for order without hearing) must be denied * * * if any party shows the existence of substantive disputes of facts sufficient to require a hearing”]).

Under CPLR 3212(b), conclusory and speculative assertions unsupported by competent evidence are insufficient to defeat a summary judgment motion.

Skerret v. Nixon · filed 2002-01-22(b)

In opposition to the motion, Khanna’s conclusory and speculative assertions concerning Forwand’s possible negligence were unsupported by any competent evidence and were thus insufficient to defeat the motion (see, CPLR 3212 [b]; Child v Suffolk County Water Auth., 283 AD2d 537; Pryor v Reichert, 265 AD2d 470).

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

Connizzo v. K-Mart Corp. · filed 2002-01-28(b)

The respondent made a prima facie showing of entitlement to judgment as a matter of law by establishing that it did not create or have actual or constructive notice of the oil spill upon which the injured plaintiff allegedly slipped and fell (see, CPLR 3212 [b]). In opposition, the plaintiffs failed to raise a triable issue of fact.

Section 3212(a) permits a court to refuse an untimely summary judgment motion made 10 months after a defendant’s answer was reinstated.

Boyle v. City of New York · filed 2002-02-21(a)

We deem defendant-appellants’ motion for summary judgment to have been made on behalf of defendant Rodriguez as well as defendants Carro and Ibiza Restaurant, and find that the motion court properly refused to entertain it some 10 months after Rodriguez’s answer had been reinstated (CPLR 3212 [a]).

Section 3212(f) permits denial of summary judgment as premature when relevant facts are within the moving party’s exclusive knowledge and discovery is incomplete.

Patterson v. Brennan · filed 2002-03-25(f)

Because such information is within the defendant’s exclusive knowledge and the defendant had yet to be deposed, the Supreme Court prematurely dismissed the complaint (see CPLR 3212 [f]; Sazer v Marino, 280 AD2d 537, 538; Sweetland v Malone, 223 AD2d 539).

Section 3212 permits summary judgment only when no triable issue of fact exists.

Ohday Realty Corp. v. Lupone · filed 2002-04-11

A summary judgment may only be granted when it is clear that no triable issue of fact exists.

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

Singh v. Rajkumar · filed 2002-05-06(a)

The Supreme Court properly addressed the merits of the motion of the defendants Siddarth Sapra and Kashmir Sapra (hereinafter the Sapra defendants) for summary judgment dismissing the complaint insofar as asserted against them, ... notwithstanding that it was made more than 120 days after the filing of the note of issue (see CPLR 3212 [a]; Andaloro v Hidden Ponds Dev. Corp., 273 AD2d 185; Quinlan v Kaufman, 258 AD2d 453; Gonzalez v 98 Mag Leasing Corp., 261 AD2d 508).

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

Falcone v. Khurana · filed 2002-05-28(a)

The defendant’s motion for summary judgment dismissing the complaint, however, was properly denied as untimely since it was made two years after the note of issue was filed, and the defendant failed to demonstrate “good cause” for the delay in making the motion (CPLR 3212 [a]; see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129; Gomez v Kukaj, 290 AD2d 531, 532; Tavkar v Cab, 289 AD2d 221, 222; Torres v Westchester Dental Servs., 287 AD2d 710).

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

Kristensen v. Charleston Square, Inc. · filed 2002-06-10(a)

Contrary to the defendants’ contention, the Supreme Court properly entertained the plaintiffs’ cross motion, inter alia, for partial summary judgment more than 120 days after the filing of the note of issue, as the plaintiffs established good cause for their delay in making their cross motion (see CPLR 3212 [a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124).

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

New York & Presbyterian Hospital v. Allstate Insurance · filed 2002-06-10(b)

The Supreme Court erred in denying the plaintiffs’ motion for summary judgment. In opposition to the plaintiffs’ prima facie showing of entitlement to judgment as a matter of law, the defendant failed to present sufficient evidence to raise a triable issue of fact as to the completeness of the hospital facility forms submitted by the plaintiffs in support of their no-fault insurance claims (see 11 NYCRR 65.15 [d] [6]), and as to the timeliness of the defendant’s verification and payment or denial procedures (see 11 NYCRR 65.15 [e] [2]; [g]; CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) permits summary judgment when the movant makes a prima facie showing and the opposing evidence raises no triable issue of fact.

Gordon v. Rodriguez · filed 2002-03-11(b)

The medical reports submitted by the defendant in support of her motion for summary judgment established a prima facie case that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). ... Accordingly, the defendant was entitled to summary judgment dismissing the complaint only insofar as asserted by the plaintiff Wayne Gordon.

Section 3212(b) requires a party seeking summary judgment to make a prima facie showing of entitlement to judgment as a matter of law.

Skiadas v. Barsalis · filed 2002-03-25(b)

In support of the branch of their motion which was for summary judgment on the breach of contract cause of action, the plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

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

Dicker v. Daley · filed 2002-05-06(b)

The defendant established a prima facie entitlement to judgment as a matter of law on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). In opposition, the plaintiffs failed to raise a triable issue of fact (see CPLR 3212 [b]).

Under section 3212(b), testimony from a will’s drafter and subscribing witnesses can establish a prima facie showing of testamentary capacity on summary judgment.

In re the Estate of DeMarinis · filed 2002-05-13(b)

In this case, the testimony of the drafter and the subscribing witnesses established a prima facie case that the decedent possessed testmentary capacity when she executed the will (see CPLR 3212 [b]).

Section 3212 permits summary judgment when no genuine issue of material fact remains and the dispute turns on questions of law.

Martucci v. Tirro Construction Corp. · filed 2002-04-22

Since there are no genuine issues of material fact both plaintiff and the defendants are correct in asserting that this matter should be decided by way of summary judgment since the issues involved turn upon questions of law rather than issues of fact.

Section 3212(b) permits summary judgment only when no triable issue of fact exists and the movant shows entitlement to judgment as a matter of law.

In re the Estate of Klosinski · filed 2002-06-24(b)

Summary judgment may be granted only where it is clear that no triable issue of fact exists (see, e.g., Alvarez v Prospect Hosp., 68 NY2d 320; Phillips v Kantor & Co., 31 NY2d 307). Objectant has failed to meet her burden of showing that the Trust agreement is an invalid pourover trust as a matter of law. Accordingly, objectant’s motion for summary judgment is denied in all respects (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Zarr v Riccio, 180 AD2d 734).

On a summary judgment motion based on lack of notice, the defendant must first show it had no notice of the condition; the plaintiff must then raise a triable issue of fact.

Labella v. Seafood · filed 2002-07-01(b)

On a motion for summary judgment to dismiss a complaint based upon lack of notice, a defendant is required to make a prima facie showing that it did not have notice of the condition which allegedly caused the plaintiff’s fall (see Goldman v Waldbaum, Inc., 248 AD2d 436, 437). Here, the defendant met that burden through the testimony of its secretary/treasurer. ... Therefore, the plaintiffs failed to raise a triable issue of fact (see CPLR 3212 [b]).

Section 3212 requires a summary judgment movant to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Bush v. ProTravel International, Inc. · filed 2002-08-09

It is in this context that the motion for summary judgment brought on by the defendants must be considered and it is in this context that they, as the moving parties, must demonstrate that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law pursuant to CPLR 3212.

Section 3212 permits summary judgment when no material, triable issue of fact exists.

19 W. 36th Holding Corp. v. Parker · filed 2002-08-09

Pursuant to CPLR 3212, a grant of summary judgment is permissible in cases where there is clearly no material and triable issue of fact presented.

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

Schrader v. Sunnyside Corp. · filed 2002-08-26(a)

Under the circumstances of this case, the Supreme Court properly exercised its discretion in allowing the defendant to serve a late motion for summary judgment, and therefore properly entertained the motion on the merits.

Section 3212(a)’s 120-day deadline is not extended for a proposed liability motion merely because damages disclosure remains outstanding.

Diaz v. Altman · filed 2002-10-01(a)

Since liability was the sole basis of the proposed summary judgment motion, and since the only disclosure defendants claim was still outstanding at the time the note of issue was filed concerned damages, it does not avail defendants to argue that the reason they did not move for summary judgment within 120 days of the filing of the note of issue was because disclosure was not complete (CPLR 3212 [a]; see Martorello v Consolidated Edison Co., 260 AD2d 317).

Under CPLR 3212(b), a defendant who makes a prima facie showing of entitlement to judgment as a matter of law is entitled to summary judgment if the plaintiff fails to raise a triable issue of fact.

Bennett v. Fairchild Republic Charter, Inc. · filed 2002-10-15(b)

The defendants Mairoll, Inc., Fairchild Communications Company, and Fairchild Holding Company (hereinafter the Fairchild defendants) made a prima facie showing of entitle...ment to judgment as a matter of law with respect to the plaintiffs causes of action pursuant to Labor Law § 200 and common-law negligence by establishing that they neither created nor had actual or constructive notice of the hole in the wall through which the plaintiff fell (see CPLR 3212 [b]). In opposition, the plaintiff failed to raise a triable issue of fact.