N.Y. C.P.L.R. § 3212

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

Mapoy v. Johnson · filed 1986-12-15(b)

The appellant failed to submit adequate proof to sustain his burden of showing entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Brown v Visan Fuel Oil Co., 114 AD2d 396; Savage v Delacruz, 100 AD2d 707).

Section 3212(b) requires a summary judgment movant to set forth evidentiary facts establishing entitlement to judgment as a matter of law.

Norman v. Crompton & Knowles Corp. · filed 1987-02-02(b)

Upon review of the record, we conclude that the defendant did not sustain its burden, as the movant, of setting forth evidentiary facts to establish its defense sufficiently to entitle it to judgment in its favor as a matter of law (CPLR 3212 [b]; see, e.g., Computer Strategies v Commodore Business Machs., 105 AD2d 167, 175, rearg denied and appeal denied 110 AD2d 743; Coley v Michelin Tire Corp., 99 AD2d 795).

Section 3212 permits summary judgment when a claim states no cause of action, even if the movant submits no affidavit from a person with knowledge of the facts.

Alexander & Alexander of New York, Inc. v. Fritzen · filed 1986-11-20(b)

We conclude that defendant Barber is entitled to summary judgment as to the first cause of action, notwithstanding that there is no affidavit from a person with knowledge of the facts, because no cause of action is stated.

Section 3212(b) requires affidavits supporting summary judgment to state material facts known to the affiant; assertions drawn from unidentified employees or records have no probative value.

Dempsey v. Intercontinental Hotel Corp. · filed 1987-01-22(b)

The denials of Otis International and United Technologies were insufficient, as a matter of law, to support a motion for summary judgment under CPLR 3212 (b). ... To support summary judgment, affidavits must cite material facts from affiants having knowledge thereof. Where an officer’s knowledge has been obtained either from unnamed and unsworn employees or unidentified and unproduced work records, the affidavit lacks any probative value and fails to fulfill such requirement.

Section 3212(b) requires a summary judgment movant to show with evidentiary facts that the opposing cause of action has no merit.

Pfenning v. Agri Business Brokerage Corp. · filed 1986-11-10(b)

Hence, he has not shown, as he must on a motion for summary judgment, "that the [plaintiffs] cause of action * * * has no merit.” (CPLR 3212 [b].) Whether plaintiffs cause of action has merit can best be determined after all of the facts have been developed at trial. The order is modified, therefore, by denying the motion of defendant John Perry for summary judgment.

Section 3212(b) permits summary judgment when the opposing evidence, viewed most favorably to that party, is too vague to sustain a fraud defense.

PGA Marketing Ltd. v. Windsor Plumbing Supply, Inc. · filed 1986-11-03(b)

While the waiver would not preclude a defense of fraud, the evidence in the record, taken most favorably to the defendant, does not support a claim of active intentional conduct required to support a fraud defense and is too vague to withstand a motion for summary judgment (see, Chiat/Day v Kalimian, 105 AD2d 94; Blue Ridge Business Brokers v Ros-Mar Club, 121 AD2d 492; see also, UCC 3-307 [2]; CPLR 3212 [b]).

Section 3212(b) permits an affidavit based on documentary evidence to support a summary judgment motion.

Barclay's Bank v. Smitty's Ranch, Inc. · filed 1986-07-03(b)

An affidavit based upon documentary evidence is sufficient to support a motion for summary judgment (Leandre v Sharperson, 96 AD2d 883).

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

Leon v. Montano · filed 1986-04-07(b)

It has been consistently held that to obtain summary judgment it is necessary that the movant establish its cause of action or defense sufficiently to warrant the court to direct judgment in its favor as a matter of law (CPLR 3212 [b]; Spearmon v Times Sq. Stores Corp., 96 AD2d 552). The record here reveals unresolved questions of fact with respect to, for example, whether or not the defendant Newport Hotel, Inc. breached any duty owed to the plaintiffs, who were its guests, and whether or not the breach, if any, was the proximate cause of their injuries. Consequently, Special Term properly denied summary judgment.

Under CPLR 3212(b), a movant’s failure to show that no factual issue exists requires denial of summary judgment regardless of the opposing papers.

Mortimer v. Lynch · filed 1986-04-07(b)

The defendants’ failure to sustain their burden of proof "required denial of [their] motion * * * regardless of the sufficiency of the opposing papers” (1014 Fifth Ave. Realty Corp. v Manhattan Realty Co., 67 NY2d 718, 720).

A summary judgment movant must establish its right to relief as a matter of law.

Farrar v. Brooklyn Union Gas Co. · filed 1986-04-30(b)

Furthermore, on a motion for summary judgment, the movant has the burden of establishing its right to the relief sought as a matter of law.

Section 3212(b) requires a summary judgment movant to establish a legally sufficient defense with proof in admissible form.

Govel v. Lio · filed 1986-05-08(b)

To obtain summary judgment, the movant must establish a defense sufficient to warrant the court, as a matter of law, in directing judgment in the movant’s favor (CPLR 3212 [b]) and the movant must do so by tender of proof in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

CPLR 3212(b) requires a summary judgment movant to present admissible evidence showing that the claim has no merit.

Conigliaro v. Franco · filed 1986-07-07(b)

The appellants thus met their burden of coming forward with admissible evidence reciting material facts and showing that the plaintiff’s cause of action has no merit (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Under CPLR 3212(b), a moving party must present evidentiary facts establishing a cause or defense that entitles it to judgment as a matter of law.

State v. Atlantic Audio-Visual Corp. · filed 1986-03-20(b)

It is well settled that summary judgment may be granted only if ... the moving party establishes his cause or defense by setting forth evidentiary facts sufficient to entitle that party to a judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

A summary judgment movant must establish its claim or defense sufficiently to warrant judgment as a matter of law.

Della Porta v. Hartford Fire Insurance · filed 1986-03-27(b)

Prefatorily, it is long and well established that, in order to be entitled to a grant of summary judgment, the moving party must establish his cause of action or his defense sufficiently to warrant the court, as a matter of law, to direct judgment in his favor (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). ... So guided, we find that an issue of fact was raised and that summary judgment was properly denied.

CPLR 3212(b) requires a summary judgment movant to present the facts supporting the claim in admissible form; the opponent must tender admissible proof raising a triable issue of fact.

Kellman v. Phelps Dodge Refining Corp. · filed 1986-02-10(b)

An examination of the affirmation submitted on behalf of the defendants in opposition to the plaintiffs’ motion for partial summary judgment indicates that the defendants have failed to meet their obligation to tender evidentiary proof in admissible form which would raise a triable issue of fact. ... On the other hand, plaintiffs’ motion meets the requirements of CPLR 3212 (b) and asserts, in admissible form, all the facts necessary to make out a claim under Labor Law § 240 (1).

On a CPLR 3212 motion, a plaintiff must lay bare proof supporting the elements of a fraud claim.

Manning v. Turtel · filed 1985-12-30

Further, on a motion pursuant to CPLR 3212, it was incumbent upon plaintiff to lay bare his proofs supporting the elements of fraud, and this he failed to do (see, Masella v Leemilt’s Flatbush Ave., 112 AD2d 1027; Great Neck Car Care Center v Artpat Auto Repair Corp., 107 AD2d 658, lv dismissed 65 NY2d 897).

Under CPLR 3212(b), unrefuted moving papers do not warrant summary judgment unless they establish entitlement to judgment as a matter of law.

Buthy v. Algonquin Broadcasting Corp. · filed 1985-12-20(b)

Thus, the moving papers, although unrefuted, do not establish that defendant is entitled as a matter of law to a judgment dismissing the action (CPLR 3212 [b]; see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

Section 3212(b) requires a defendant moving for summary judgment to first submit evidence showing that the plaintiff has no cause of action.

Reilly v. Taylor · filed 1985-12-20(b)

A defendant moving for summary judgment bears the burden in the first instance of submitting evidence showing that the plaintiff has no cause of action (CPLR 3212 [b]). Defendants-appellants have failed to sustain that burden.

Section 3212(b) requires a motion for summary judgment to include a copy of the pleadings.

Freeman v. Easy Glider Roller Rink, Inc. · filed 1985-10-21(b)

Her papers read in support of the motion failed to include a copy of the ... pleadings as required by statute (see, CPLR 3212 [b]; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341).

Section 3212(b) requires a party seeking summary judgment to support its claim or defense with admissible proof, and a material issue of fact requires a trial.

Crosland v. New York City Transit Authority · filed 1985-09-09(b)

To obtain summary judgment it is necessary that the movant establish his cause of action or defense “sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b]). ... Having concluded that the Transit Authority, acting in its proprietary capacity, is not immune from liability and that material and triable issues of fact exist, the order denying summary judgment to the Transit Authority should be affirmed insofar as appealed from.

Section 3212 precludes summary judgment when material, triable issues of fact remain.

Johnson v. New York City Housing Authority · filed 1985-10-21

We conclude that Trial Term properly denied the motion because material and triable issues of fact are present precluding the granting of summary judgment (see, Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261).

Section 3212(b) requires a summary judgment motion to be supported by an affidavit from a party with personal knowledge of the underlying facts.

Mastro v. Mastro · filed 1985-07-08(b)

In the first instance, plaintiff’s motion papers were inadequate in that they did not include an affidavit of a party with personal knowledge of the underlying facts of the action (CPLR 3212 [b]).

A summary judgment movant must establish entitlement to judgment as a matter of law with admissible evidence before the opposing party must raise a factual issue.

Bee Publications, Inc. v. Cheektowaga Times, Inc. · filed 1985-03-01(b)

“To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Because plaintiffs have not met this required showing, it was not incumbent upon defendant to “go forward and submit evidence to raise a question of fact” (Mulhauser v Wood, 107 AD2d 1019; see, Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212 requires a summary judgment movant to present sufficient evidence to eliminate material factual issues before deficiencies in the opposing papers can matter.

Cugini v. System Lumber Co. · filed 1985-05-23(b)

While the failure to submit an affidavit of merit in response to a motion for summary judgment seeking dismissal of an action does, as stated in the dissent, mandate a dismissal without condition, such presupposes that the movant, in the first instance, has made the requisite showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact.

Section 3212(b) requires a summary judgment movant to make a prima facie showing of entitlement to judgment as a matter of law; failure to do so requires denial regardless of the opposing papers.

Winegrad v. New York University Medical Center · filed 1985-02-12(b)

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 eliminate any material issues of fact from the case (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649; Greenberg v Manlon Realty, 43 AD2d 968, 969).

A party opposing summary judgment with a fraud in the inducement claim must offer genuine proof, rather than shadowy or conclusory assertions.

Citibank, N. A. v. Plapinger · filed 1985-01-22

“Though oral proof may be admitted to show that a written pact was obtained by a fraud in its inducement, such evidence, in order to defeat a motion for summary judgment, must be genuine and based on proof, not shadowy and conclusory statements.” ... Special Term correctly gave summary judgment to plaintiffs.

Section 3212(b) requires a party opposing partial summary judgment to produce evidence sufficient to defeat the motion.

Swartz v. Karlan · filed 1985-01-28(b)

With regard to both the 1975 visit and the earlier treatments by Dr. Karlan, plaintiffs have utterly failed to produce evidence to defeat the motion for partial summary judgment (CPLR 3212, subd [b]; Zuckerman v City of New York, 49 NY2d 557). Appellant’s motion for partial summary judgment as to him with respect to these acts should be granted.

Section 3212(b) requires summary judgment affidavits to recite material facts from people with knowledge of those facts.

Republic National Bank v. Luis Winston, Inc. · filed 1985-01-08(b)

To support summary judgment, affidavits must recite material facts from affiants having knowledge of those facts (CPLR 3212, subd [b]). Aero Duct’s affidavit does not fulfill this requirement.

CPLR 3212(b) requires a party seeking summary judgment on a defense to establish that defense sufficiently to warrant judgment as a matter of law.

Chiosie v. Chiosie · filed 1984-10-22(b)

Accordingly, the appellant did not establish her defense sufficiently to warrant the court, as a matter of law, in directing judgment in her favor (CPLR 3212, subd [b]).

Section 3212(b) requires a party seeking summary judgment to present evidentiary facts sufficient to warrant judgment as a matter of law.

Midland Mortgage Corp. v. 52nd Street Owners Corp. · filed 1984-12-03(b)

Based on the record, defendants did not sustain their burden, as the moving parties, of setting forth evidentiary facts to establish their defense “sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212, subd [b]).

Section 3212(b) requires a summary judgment movant to set forth evidentiary facts sufficient to warrant judgment as a matter of law.

Port Jefferson Nursing Home & Health Related Facility v. Dinerstein · filed 1985-01-14(b)

Defendants therefore did not sustain their burden, as the moving parties, of setting forth evidentiary facts sufficient to establish their defense and to “warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212, subd [b]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Coley v Michelin Tire Corp., 99 AD2d 795).

A summary judgment movant must present evidentiary facts sufficient to establish entitlement to judgment as a matter of law.

Krupp v. Aetna Life & Casualty Co. · filed 1984-09-04(b)

We disagree, concluding that under the particular circumstances of this case, Mary Krupp, as moving party, failed to meet her burden of setting forth evidentiary facts sufficient to establish her entitlement to partial summary judgment (see Coley v Michelin Tire Corp., 99 AD2d 795, 795-796).

Section 3212(b) requires a summary judgment movant to establish its defense sufficiently to warrant judgment as a matter of law; an affidavit relying on attorneys’ advice without identifying the basis for their information does not meet that burden.

Garcia v. Biro Manufacturing Co. · filed 1984-09-18(b)

Defendant has, therefore, failed to meet its burden of establishing its defense “sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212, subd [b]).

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

Belmont Electric Co. v. Flushing Development Corp. · filed 1985-01-14(b)

It is fundamental that to “obtain summary judgment it is necessary that the movant establish his * * * defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b])” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Appellants have failed to sustain this burden.

Section 3212(b) requires a summary judgment movant to submit affidavits from people with knowledge of the facts; a lawyer’s affirmation without personal knowledge lacks probative value.

Wiener v. Ga-Ro Die Cutting Inc. · filed 1984-08-23(b)

Moreover, plaintiff, as the moving party, failed to submit affidavits by any person with requisite knowledge of the facts, as required (CPLR 3212, subd [b]), but relied solely upon the affirmation of counsel, who was without personal knowledge of the facts.

Section 3212 requires a party seeking summary judgment to support the motion with proper affidavits and proof showing no triable issue of fact and entitlement to judgment as a matter of law.

Rosen v. Elridge · filed 1964-01-08

Plaintiff’s motion for summary or accelerated judgment (CPLR 3212; formerly Rules Civ. Prac., rule 113) is denied. ... If plaintiff feels that defendant’s general denials, as distinguished from specific denials, fail to present any triable issue of fact; that there is no defense to the action and that he can establish his cause of action sufficiently to warrant the court as a matter of law in directing judgment in his favor, then, if he be so advised, he should renew the motion upon proper affidavits and other available proof.

Section 3212 permits partial summary judgment when an asserted defense fails as a matter of law, even though other claims retain triable issues.

Meadow Brook National Bank v. Bzura · filed 1964-02-20

Special Term denied summary judgment on the ground that the alleged oral agreement to obtain a primary guarantee from others as a condition precedent raised a triable issue of fact. The order should be Reversed and plaintiff bank granted partial summary judgment (CPLR 3212, formerly Rules Civ. Prae., rule 113). The oral agreement was not provable because contradictory of the express terms of the guarantee.

Section 3212(b) requires evidentiary facts, rather than a conclusory assertion of agency, to avoid summary judgment.

Koreska v. United Cargo Corp. · filed 1965-04-01(b)

Thus, United’s conclusory statement that Allgemeine is Koreska’s agent is doubly defective. It is not an evidentiary fact, as is required to avoid summary judgment (C:PLR 3212, subd. [b]); and it is not even probative of Allgemeine’s power to bind Koreska in the manner claimed.

Under CPLR 3212, an attorney’s affidavit that lacks evidentiary facts and personal knowledge does not establish a bona fide defense to summary judgment.

Israelson v. Rubin · filed 1964-01-27

The affidavit of defendant’s attorney, the only paper submitted in opposition to the motion, contains bald conclusions without any evidentiary facts to substantiate a defense or to refute plaintiff’s claims.

Section 3212 permits summary judgment when defenses raised only in opposing affidavits were not pleaded and therefore create no triable issue of fact.

Town of Harrison v. County of Westchester · filed 1965-05-28

The defenses raised by the defendant in its affidavits on this motion fail because they have not been pleaded. ... The answer therefore does not create triable issues of fact with respect to them.

A party moving for summary judgment must establish entitlement to judgment as a matter of law with evidentiary facts, even when the opposing papers are insufficient.

Andrews v. McDonald · filed 1965-06-14(b)

While the plaintiff has failed to furnish this court with an evidentiary showing in affidavit form, nevertheless, the moving party has the burden to set forth evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law, anything less requires a denial of the motion even where the opposing papers are insufficient.

Under CPLR 3212, an answering affidavit must raise a substantial factual question to defeat a summary judgment motion.

Utica Sheet Metal Corp. v. J. E. Schecter Corp. · filed 1965-08-23

The answering affidavit of Jack E. Schecter fails to raise a substantial factual question which would defeat a motion under CPLR 3212.

Section 3212 permits summary judgment when a preclusion order prevents the opposing party from proving its claim.

Jansen's Bottled Gas Service, Inc. v. Warren Petroleum Corp. · filed 1965-08-31

If the preclusion order stands, it is inconceivable how plaintiff could prove any cause of action for breach of warranty. ... The cross motion for relief from the preclusion order is denied. Accordingly, for reasons previously stated, the motion for summary judgment is granted on the merits, without costs.

CPLR 3212 does not permit summary judgment based on favorable professional advice when the motion papers do not develop the grounds for that advice and it does not conclusively establish good faith and business judgment.

Gluck v. Rosenstiel · filed 1966-05-17

Significant although it may be that the corporate tender for purchase of the corporation’s publicly held shares, at a price substantially in excess of the market price that had prevailed for a significantly long period before the tender, was made only after obtaining the favorable advice of investment bankers and legal counsel, it is not conclusive on the issue of good faith and the exercise of business judgment on behalf of the corporation. At least this is so, so long as the grounds for these opinions are not suggested or developed in the motion papers.

Documents submitted in opposition to summary judgment must show an issue of fact to defeat the motion.

Brooklyn Eastern District Terminal v. Phoenix of Hartford Insurance · filed 1966-07-05(b)

In our opinion, the documents offered by plaintiff in opposition to the motion for summary judgment were insufficient to show the existence of an issue of fact (CPLR 3212, subd. [b]).

A summary judgment movant must show that a defense has no merit; a conclusory affidavit does not meet that burden.

Champlain Milk Products, Inc. v. M. E. Franks, Inc. · filed 1966-11-29(b)

The allegation of plaintiff’s insolvency pleaded in the defense has not been factually controverted for the purposes of the motion and survives as a triable issue, inasmuch as, under long-settled principles, the movant plaintiff did not sustain the burden imposed upon it of showing “that there is no defense to the cause of action or that the * * * defense has no merit ” (CPLR 3212, subd. [b]) by the purely conclusory statement in a supplemental affidavit by plaintiff’s president that, “ It is respectfully submitted to this Court that by all legal and accounting tests, Champlain Milk Products, Inc., never has been and is not now insolvent.”

Section 3212 permits summary judgment only when the submitted papers and proof warrant judgment as a matter of law.

Rotsettis v. Nationwide Mutual Insurance · filed 1967-02-15

With respect to the other causes of action, the motion is denied. The papers and proof submitted are not sufficient to warrant the court, as a matter of law, in directing judgment thereon.

A party’s statement based on personal knowledge must be in affidavit form to be considered on a motion to dismiss a defense.

Brooks v. Horning · filed 1967-03-09(b)

Furthermore, since statements of parties having personal knowledge of the facts must be in affidavit form if they are to be considered, appellant’s unsworn statement is not sufficient.

Section 3212(b) requires an affidavit opposing summary judgment to contain evidentiary facts.

Whaley v. Jamestown Mutual Insurance · filed 1967-04-25(b)

An opposing affidavit must contain evidentiary facts.

Section 3212(b) requires facts supporting a claimed issue of fact to defeat summary judgment.

Hoffman v. Lee Nashem Motors, Inc. · filed 1967-11-02(b)

Moreover, the defendants’ affidavit does not even assert that the two loans constituted one transaction. In raising the issue for the first time in this court, the defendants have failed to present a single fact which might support such an inference. (See CPLR 3212, subd. [b]). We conclude that the contention that the two loans constituted one transaction is without merit.

Section 3212 requires a summary judgment movant to produce evidence showing that no material, triable issue of fact exists.

Morrow v. Ætna Casualty & Surety Co. · filed 1968-01-11(b)

The burden is upon the movant to produce evidence whereby it must clearly appear that no material and triable issue of fact is presented by the pleadings.

CPLR 3212(b) requires factual evidence supporting summary judgment; conclusory allegations in a verified complaint are insufficient.

Jackson v. Timmons · filed 1968-01-15(b)

In our opinion, plaintiff’s supporting papérs are not sufficient to meet the evidentiary requirements of CPLR 3212 (subd. [b]). No affidavit by her or any eyewitness was submitted.

Under CPLR 3212, an attorney’s affidavit without personal knowledge is insufficient to oppose summary judgment.

Clarcq v. Chamberlain Mobile Home Transport, Inc. · filed 1968-06-03

The law is well settled that an attorney’s affidavit made without personal knowledge is insufficient to oppose the motion for summary judgment.

Section 3212(b) requires a party opposing summary judgment to submit evidentiary facts that rebut the movant’s prima facie showing and establish a triable issue; repeating allegations in pleadings does not suffice.

Indig v. Finkelstein · filed 1968-11-27(b)

It was then mandatory upon plaintiffs to submit evidentiary facts or materials, by affidavit or otherwise, rebutting the prima facie showing of no publication and demonstrating the existence of a triable issue of ultimate fact (CPLR 3212, subd. [b]; ...).

Under CPLR 3212(b), once the moving party supports its claim with evidence, the opposing party must submit evidence showing a triable issue of fact.

Central School District No. 2 v. Cohen · filed 1969-04-17(b)

That being so, it becomes incumbent upon defendant to submit evidentiary facts or materials, by affidavit or otherwise, rebutting said facts and demonstrating the existence of a triable issue of ultimate fact (CPLR 3212, subd. [b]; Indig v. Finkelstein, 23 N Y 2d 728, 729 [1968]).

Section 3212 permits summary judgment when the opposing party produces no evidentiary facts supporting an essential element of the claim.

Lloyds v. United Press International, Inc. · filed 1970-04-13

On this motion for summary judgment, it clearly appears that plaintiffs have produced no evidentiary facts to prove actionable malice on the part of the defendant, nor evidentiary proof of actual knowledge of falsity of the statement complained of to establish actual malice in fact; nor is there any evidentiary proof of a reckless disregard for the truth within the meaning of the McLaney case aforecited (see Silbowitz v. Lepper, 55 Misc 2d 443, affd. 32 A D 2d 520).

A defense unsupported by evidentiary facts must be disregarded on a motion for summary judgment.

C. & N. Trading Co. v. Johnstown Fur Dressing Corp. · filed 1969-10-15(b)

No evidentiary facts as to this defense are offered, however, and the defense must therefore be disregarded upon this motion. (CPLR 3212, subd. [b].)

Section 3212 requires parties seeking or opposing summary judgment to support their claims or defenses with material proof; general or conclusory allegations cannot defeat the motion.

Schneider v. Rochester Firemen's Benevolent Ass'n · filed 1971-11-16

In a motion for summary judgment, it is essential that the parties completely set forth and support their claims or defenses. Everything must be offered. Nothing may be withheld which is material to the purpose of successfully obtaining or resisting the application. Such a motion cannot be defeated by general or conclusory allegations.

Under § 3212, an unanswered presumption of negligence and freedom from contributory negligence can support accelerated judgment.

Cromwell v. Rodriguez · filed 1971-02-23

This presumption, if unanswered, is sufficient to support the motion for accelerated judgment (Kohler v. Fifth Ave. Coach Lines, 23 Misc 2d 66).

Section 3212 requires a party moving for summary judgment to produce all evidence available to it, as it would at trial.

FIVE BORO ELEC. CONTRACTORS ASSN. INC. v. City of New York · filed 1971-10-04

And since what was before Special Term was a motion for summary judgment, the moving plaintiffs had an obligation to produce all the evidence within their ken, as upon a trial.

CPLR 3212(b) requires a summary judgment motion to be supported by an affidavit from a party with knowledge of the facts.

V. A. W. of America, Inc. v. General Electric Co. · filed 1972-03-07(b)

In addition, the affidavits in support of the motion and in opposition thereto were submitted by attorneys for the parties, none of whom profess any personal knowledge of facts involved. The requirement of CPLR 3212 (subd. [b]) that such a motion must he supported by the affidavit of a party having knowledge of the facts, has not been met.

Section 3212(b) requires a summary judgment movant to establish that no triable issue of fact exists.

In re the Estate of Brady · filed 1972-04-24(b)

In our opinion, the proponent has failed to meet his burden of establishing the nonexistence of any triable issue of fact, except as to the objection of fraud (CPLR 3212, subd. [b]), and the record indicates that some of the proffered objections which are herein directed to be tried may be valid.

Under CPLR 3212(b), opposing affidavits that do not contradict material allegations are insufficient to defeat summary judgment.

Stephenson v. County of Monroe · filed 1974-01-17(b)

No fact is set forth therein in contradiction of the material allegations of the complaint and, therefore, the affidavits are insufficient to defeat plaintiffs’ motion for summary judgment (Shapiro v. Health Ins. Plan of Greater N. Y, 7 N Y 2d 56; O’Meara Co. v. National Park Bank of N. Y., 239 N. Y. 386; General Inv. Co. v. Interborough R. T. Co., 235 N. Y. 133; CPLR 3212, subd. [b]).

Under CPLR 3212, conclusory allegations that raise no triable issue do not prevent summary judgment.

Greene v. New York City Off-Track Betting Corp. · filed 1974-01-18

The other conclusory allegations made by plaintiffs are also insufficient to raise any triable issues.

Section 3212(b) permits summary judgment when the opposing party fails to present evidentiary facts raising a triable issue.

Newmark v. Weingrad · filed 1974-02-25(b)

Accordingly, as a matter of law, summary judgment should have been granted in favor of .plaintiffs pursuant to CPLR 3212 (subd. [b]). Additionally, the defendant vendor has failed to demonstrate by evidentiary facts any substance to his third-party complaint against the title company.

Section 3212(b) requires a summary judgment motion to be supported by an affidavit from a person with knowledge of the facts, the pleadings, and other available proof.

S. J. Capelin Associates, Inc. v. Globe Manufacturing Corp. · filed 1974-06-13(b)

The statutory standard for the supporting proof required on a motion for summary judgment is set forth in CPLR 3212 (subd. [b]). In brief, the motion must be supported by an affidavit of a person having knowledge of the facts, together with a copy of the pleadings and other available proof.

Under CPLR 3212, uncontroverted facts in a summary judgment motion may be deemed admitted, and unchallenged facts on cross motions may establish that no factual issue remains.

Kuehne & Nagel, Inc. v. Baiden · filed 1975-05-07

Facts appearing in the movant’s papers which the opposing party does not controvert, may be deemed to be admitted (Laye v Shepard, 48 Misc 2d 478, affd 25 AD2d 498; Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR 3212:16, p 437), and where there are cross motions for summary judgment, in the absence of either party challenging the verity of the alleged facts, as is true in the instant case, there is, in effect, a concession that no question of fact exists (cf. Schifter v Commercial Travelers Mut. Acc. Assn., 183 Misc 74, affd 269 App Div 706; see, also, Ann., 36 ALR2d 881).

CPLR 3212 requires a summary judgment motion to be supported by an affidavit stating all material facts and showing that there is no defense to the action.

Glens Falls Insurance v. Russo · filed 1975-09-24

CPLR 3212 requires that such a motion be supported by an affidavit reciting all material facts and that it show there is no defense to the action. It requires that the motion shall be granted if the cause of action is established sufficiently to warrant the court as a matter of law in directing judgment.

Section 3212(c) does not permit summary judgment on claimed damages without acceptable proof of the loss.

Dinerman v. National Bank of North America · filed 1977-01-18(c)

Based upon such lack of specificity, such cannot be the basis for summary judgment in his behalf, even under CPLR 3212 (subd [c]) because there exists no acceptable proof upon which to allow or base such so-called damage or loss occasioned by uncollected "off-sets”, for they may not be proven against defendant as such is objectionable under the "hearsay evidence” rule; the statute places the burden of proof upon the plaintiff to establish the amount of loss resulting from payment of an item contrary to a so-called pending "stop payment order” (Uniform Commercial Code, § 4-403, subd [5]; American Defense Soc. v Sherman Nat. Bank of N. Y, 225 NY 506; Chase Nat. Bank of City of N. Y. v Battat, 297 NY 185).

A party opposing summary judgment on a punitive damages claim must present evidentiary facts sufficient to raise a triable issue of fact.

Karlsons v. Guerinot · filed 1977-04-15

Such damages may only be assessed when the actions of the tort-feasor constitute gross negligence or "intentional wanton or malicious conduct” (Johnson v State of New York, 44 AD2d 151, 153, revd on other grounds 37 NY2d 378, supra) and where, as here, the validity of the claim is questioned by a motion for summary judgment, it is incumbent upon plaintiffs to present evidentiary facts sufficient to raise a triable issue of fact (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285). Plaintiffs however have failed to meet this burden.

On a CPLR 3212 motion, an unverified allegation in a complaint is insufficient to establish an exception to the limitations period without competent proof.

Burwell v. Whitmoyer · filed 1977-03-10

The instant record, however, is devoid of any competent proof that either of these exceptions would apply in the present case. The complaint contains an unverified allegation that the defendant and others treated plaintiff from September 21, 1972 until April 23, 1973.

Section 3212(f) does not permit discovery to delay summary judgment when the opposition rests on surmise, conjecture, and suspicion.

Travelers Indemnity Co. v. Flushing National Bank · filed 1977-06-21(f)

Alternatively, the defendants move for a denial of the plaintiff’s motion for summary judgment and granting the discovery in aide of the defenses, pursuant to CPLR 3212 (subd [f]). This branch of the motion is similary denied.

CPLR 3212(b) requires a sufficient moving affidavit to obtain summary judgment.

Flushing National Bank v. Municipal Assistance Corp. · filed 1977-05-02(b)

Although the additional application is, in terms, for partial summary judgment, the moving affidavit, though manifestly insufficient under CPLR 3212 (subd [b]) makes it clear that the purpose is to relitigate the issue of interest rate heretofore decided (Flushing Nat. Bank v Municipal Assistance Corp., NYLJ, March 7, 1977, p 11, col 2), a decision to which this court continues to adhere.

Subdivision (b) requires sufficient documentation of damages to warrant summary judgment.

Weaver Metal & Roofing Co. v. Continental Insurance · filed 1977-07-12(b)

Nor is there sufficient documentation of the damages in the record to warrant summary judgment (CPLR 3212, subd [b]).

Section 3212(b) requires evidence sufficient to warrant judgment as a matter of law; conclusory allegations do not suffice.

Periconi v. State · filed 1977-10-19(b)

Claimant’s conclusory allegations do not meet the evidentiary standard warranting judgment as a matter of law (see CPLR 3212, subd [b]).

Section 3212(b) requires a summary judgment movant to submit an affidavit from a person with knowledge of the facts.

Harding v. Buchele · filed 1977-10-24(b)

What defeats plaintiff’s motion for summary judgment, however, is his failure to submit an affidavit as the person who has knowledge of the facts (see CPLR 3212, subd [b]; Farragut Gardens No. 5 v Milrot, 23 AD2d 889).

A CPLR 3212 motion requires supporting evidence, including copies of the documents on which the claim rests.

Ray-C Realty Corp. v. Zarfin Realty Corp. · filed 1978-01-19

From a review of all the papers submitted on this motion and on file in the County Clerk’s office it appears that no copies of the operative documents have been submitted to the court. The motion is denied without prejudice to renewal upon proper papers, including copies of the documents upon which the complaint is based.

CPLR 3212(b) requires affidavits supporting summary judgment to come from a person with knowledge of the facts; attorney affirmations without that knowledge lack probative value.

Committee for the Preservation of Fresh Meadows, Inc. v. Fresh Meadows Associates · filed 1978-03-15(b)

Although this motion is brought pursuant to CPLR 3212, for summary judgment, neither of the parties’ affirmations, plaintiffs’ or defendant’s, have been made by "a person having knowledge of the facts” a requirement of the statute (CPLR 3212, subd [b]), but rather by their respective attorneys and as such neither affidavit is made with factual knowledge and therefore cannot afford a basis for granting summary judgment since they have no probative value (Chickering v Colonial Life Ins. Co. of Amer., 51 AD2d 566; Rosemont Enterprises v Choppy Prods., 74 Misc 2d 1003).

An opponent must present sufficient evidence of a triable issue to defeat summary judgment.

French American Banking Corp. v. Dulong Importers, Inc. · filed 1978-05-25

Again, defendant Dulong has failed to come forward with sufficient evidence to raise a triable issue.

Section 3212 requires evidence of material facts to support summary judgment; a counsel affidavit without personal knowledge does not supply it.

Raine v. Allied Artists Productions Inc. · filed 1978-06-15

Order, Supreme Court, New York County, entered September 23, 1977, unanimously modified, on the law, and without costs and disbursements, to deny motion to dismiss the affirmative defenses, except as to the second defense which asserts the Statute of Limitations as a bar to the action, and to reinstate the other seven defenses and the counterclaim; deny summary judgment; and otherwise affirmed. ... The plaintiff moved (1) for an order pursuant to CPLR 3211 (subd [b]) dismissing the eight defenses and (2) pursuant to CPLR 3212 for summary judgment and directing a hearing to assess damages. In the accompanying affidavit by plaintiff’s counsel, it is argued that summary judgment would follow the granting of the motion to dismiss the defenses. This affidavit sets forth no material facts based upon the affiant’s knowledge and was responded to by an affidavit signed by the defendants’ counsel which likewise set forth no material facts based upon personal knowledge.

A summary judgment motion must include a copy of the pleadings, which are a required part of the motion record.

Krasner v. Transcontinental Equities, Inc. · filed 1978-07-13(b)

CPLR 3212 (subd [b]) provides that a motion for summary judgment shall be supported by a copy of the pleadings. The pleadings are a requisite part of the record of a CPLR 3212 motion (see 4 Weinstein-KornMiller, NY Civ Prac, par 3212.10). Not only are the pleadings not part of the record of the instant motion, they appear to have not as yet been filed with the clerk of the Supreme Court.

Section 3212 permits summary judgment for medical malpractice defendants who make a prima facie showing that the claim lacks merit when the plaintiff offers no expert proof raising a triable issue.

Goodman v. Emergency Hospital · filed 1978-11-13

This proof is necessary to support her conclusory allegation of a deviation from such standards and that the deviation proximately caused her injuries. Especially so here where the defendants have come forward and presented prima facie proof that plaintiff’s claim is without merit. ... This court concludes that there are no triable issues. Summary judgment is granted to all defendants as this is a medical malpractice suit grounded in a frivolous claim.

Section 3212(b) requires opposing affidavits from persons with knowledge of the facts, but inadequate moving papers do not warrant summary judgment.

Oberman v. Reilly · filed 1978-12-12(b)

Although defendants have failed to submit affidavits by persons with requisite knowledge of the facts as required (CPLR 3212, subd [b]), the moving papers are inadequate to finally dispose of ... the issue.

Section 3212 does not permit unconditional summary judgment based on a pleading defect when the plaintiff's submissions establish a cause of action, but the submissions must raise a triable issue of fact.

Alvord & Swift v. Stewart M. Muller Construction Co. · filed 1978-12-21(b)

Modern principles of procedure do not permit an unconditional grant of summary judgment against a plaintiff who, despite defects in pleading, has in his submissions made out a cause of action. But in this case, because no facts establishing intentional interference with plaintiff's contractual relations have ever been alleged or proved, plaintiff has failed to demonstrate the existence of a triable issue of fact. Summary judgment was, therefore, properly granted (CPLR 3212).

An affidavit opposing summary judgment must be based on personal knowledge of the facts; counsel’s affidavit without that knowledge cannot defeat the motion.

Rotuba Extruders, Inc. v. Ceppos · filed 1978-12-27(b)

Ceppos’ counsel’s affidavit was not made on personal knowledge of the facts and, hence, could not defeat the motion for summary judgment (CPLR 3212, subd [b]; see Columbia Ribbon & Carbon Co. v A-1-A Corp., 42 NY2d 496, 500).

Section 3212(b) requires a summary judgment motion to be supported by an affidavit from someone with personal knowledge of the facts.

Lefkowitz v. Esposito · filed 1979-02-07(b)

Such a motion must be supported by an affidavit of an individual having personal knowledge of the facts (CPLR 3212, subd [b]).

CPLR 3212 permits summary judgment when a petitioner fails to present evidentiary facts supporting the claim.

State v. South Haven Houses Housing Development Fund Co. · filed 1979-02-15

An examination of the record before us, however, reveals petitioner failed to set forth any evidentiary facts to substantiate his claim that respondent acted in a fraudulent and illegal manner in violation of the General Obligations Law. Consequently, the petition was properly dismissed inasmuch as summary judgment should have been granted for respondent bank.

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

Executive Securities Corp. v. Gray · filed 1979-02-15(b)

CPLR 3212 (subd [b]) directs that such a motion "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show there is no defense to the cause of action or that the cause of action or defense has no merit.” Here, neither party conformed to the requisite standard.

Section 3212(b) requires a summary judgment motion to be supported by an affidavit from someone with knowledge of the facts; an unsigned affirmation may be disregarded when the defect causes no prejudice.

Standard Fruit & Steamship Co. v. Russo · filed 1979-02-20(b)

Unquestionably, the unsigned attorney’s affirmation is a defect in context of the requirement that a motion for summary judgment be supported by an affidavit by a person having knowledge of the facts (see CPLR 3212, subd [b]). However, in the circumstances of this case, the defect was merely a highly technical procedural irregularity which may be disregarded pursuant to CPLR 2001.

Section 3212(b) requires a supporting affidavit for summary judgment to be made by someone with personal knowledge of the facts.

Giffords v. Cablevision, Inc. · filed 1979-04-16(b)

The affidavit in support of the motion was made by an attorney without personal knowledge of the facts, contrary to the requirement of CPLR 3212 (subd [b]).

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

Bethlehem Steel Corp. v. Solow · filed 1979-06-28(b)

There is no direct affidavit by a person having knowledge of the facts in support of plaintiff’s motion as required by CPLR 3212 (subd [b]).

On a CPLR 3212 summary judgment motion, an attorney’s affidavit without personal knowledge of the facts has no probative value and must be disregarded.

O'Connor v. B. J. Auto Make Ready Corp. · filed 1979-04-27

The major arguments are solely based on an affirmation of an attorney, an individual without personal knowledge of the underlying facts. It has been consistently held that in a motion for summary judgment, an affidavit of an attorney who has no personal knowledge of the facts has no probative value and must be disregarded.

Under CPLR 3212(b), an attorney’s affidavit based on documentary evidence in the attorney’s possession can sufficiently support a summary judgment motion.

Comptroller v. Gards Realty Corp. · filed 1979-05-28(b)

As a preliminary matter, we note that Special Term’s construction of CPLR 3212 (subd [b]) is too restrictive. The cited provision requires a motion for summary judgment to be supported by an affidavit of "a person having knowledge of the facts”. ... In the case at bar, the affidavit of the plaintiffs attorney, based upon documentary evidence in his possession, was sufficient.

Section 3212(b) requires a summary judgment motion to include the pleadings; omission ordinarily requires denial, but a supplemental appellate record containing them permits review of the merits.

Ayer v. Sky Club, Inc. · filed 1979-06-28(b)

Ordinarily, this would mandate denial of summary judgment relief as CPLR 3212 (subd [b]) provides that a motion for summary judgment shall be supported by a copy of the pleadings. ... However, pursuant to stipulation "so ordered” by a Justice of this court, the parties have been permitted to file a supplemental record on appeal containing a copy of the pleadings. We therefore consider the merits of the motion and cross motion for summary judgment.

Section 3212(b) requires a summary judgment motion to be supported by an affidavit from someone with knowledge of the facts, the pleadings, and other available proof.

Stainless, Inc. v. Employers Fire Insurance · filed 1979-07-10(b)

We note as a preliminary matter that neither side has submitted appropriate papers required on a motion for summary judgment. The statute requires that such a motion be supported by affidavit by one with requisite knowledge of the facts, together with a copy of the pleadings and other available proof (CPLR 3212, subd [b]).

An attorney’s affidavit without personal knowledge is insufficient to defeat summary judgment.

Rera v. Rera · filed 1979-08-21

Motion by plaintiff in this matrimonial action for summary judgment pursuant to CPLR 3212 is granted. ... The opposing affidavit of an attorney without personal knowledge of the facts is totally insufficient to meet this burden and must be disregarded.

Section 3212(b) requires an affidavit from someone with knowledge of the facts to support a summary judgment motion, but the court may grant partial judgment when the supporting exhibits establish an undisputed amount.

Bethlehem Steel Corp. v. Solow · filed 1979-11-27(b)

There is no direct affidavit by a person having knowledge of the facts in support of plaintiff’s motion as required by CPLR 3212 (subd [b]). Nevertheless, it appears quite plain in light of the supporting exhibits that (except for the sum of $26,531.71 as to which summary judgment was not sought or granted) there is no real dispute that plaintiff did the work it claims, which, if properly done, would entitle it to judgment, after credits for payments, in the amount granted by Special Term, i.e., $1,097,767.64, with interest.

A party opposing summary judgment must present admissible evidence of a factual issue requiring trial or an acceptable excuse for failing to do so; a hearsay affirmation by counsel alone is insufficient.

Zuckerman v. City of New York · filed 1980-04-01(b)

We repeat today a precept frequently stated — where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement.

Conclusions based on hearsay do not defeat a motion for summary judgment under CPLR 3212(b).

Spadaro v. Consolidated Edison Co. · filed 1979-12-10(b)

CPLR 3212 (subd [b]) directs that "The motion [for summary judgment] shall be granted if, upon all the papers and proof submitted, the cause of action * * * shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” ... At bar we have nothing but hearsay—and conclusory hearsay at that—submitted in an attempt to defeat the motion. Accordingly, we affirm.

An attorney’s affirmation without personal knowledge of the facts cannot defeat a motion for summary judgment.

David Graubart, Inc. v. Bank Leumi Trust Co. · filed 1979-12-19(b)

And, since Graubart’s counsel’s affirmation was made without personal knowledge of the facts, it was not competent to defeat the motion for summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223, 229, n 4; Columbia Ribbon & Carbon Mfg. Co. v A-l-A Corp., 42 NY2d 496, 500; CPLR 3212, subd [b]; see, generally, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 292-293).

Section 3212(b) requires a summary judgment movant to show that no genuine issue of material fact remains on any issue raised by the pleadings, including affirmative defenses.

Aimatop Restaurant, Inc. v. Liberty Mutual Fire Insurance · filed 1980-02-14(b)

CPLR 3212 (subd [b]) requires movant to demonstrate the absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses.

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

Olinkraft, Inc. v. Fairbairn Lumber Corp. · filed 1980-06-05(b)

Firstly, the requirement of CPLR 3212 (subd [b]) that a motion for summary judgment be supported by an affidavit from a person having knowledge of the facts and that it must recite all of the material facts has plainly not been met (cf. V.A. W. of Amer. v General Elec. Co., 38 AD2d 989).

Under CPLR 3212(f), further opposition to summary judgment is not required when the moving papers fail to establish a critical fact.

Cronin v. Scott · filed 1980-10-23(f)

One of the critical facts thus raised is the amount Zand actually paid for the premises. Since that sum was not definitely established in his moving papers, further opposition by plaintiffs was not required at this point in the action (cf. CPLR 3212, subd [f]).

Section 3212(b) permits summary judgment when the movant establishes entitlement to judgment and the opposing party fails to show facts requiring a trial.

Goldstein v. County of Monroe · filed 1980-11-13(b)

These defendants have tendered evidentiary proof establishing their defense "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212, subd [b]) and plaintiff has not shown "facts sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b]).

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

Otis Elevator Co. v. Heggie Realty Co. · filed 1980-12-09(b)

To obtain summary judgment, a plaintiff must establish that his cause of action warrants judgment in his favor as a matter of law (CPLR 3212, subd [b]) by submitting “evidentiary proof in admissible form”.

CPLR 3212 requires evidentiary facts showing a genuine issue to defeat summary judgment; conclusory or irrelevant allegations are insufficient.

Loomis v. Sun Oil Co. · filed 1980-12-23

Special Term erred in denying the motion of appellant National Fuel Gas (NFG) for summary judgment (CPLR 3212) dismissing the complaint and cross claim against NFG for injuries allegedly suffered when plaintiff fell into a hole in the sidewalk on property owned by defendant Sun Oil Company on which third-party defendant Sciortino operated a gas station. ... The testimony of Sciortina that a few days prior to the accident NFG had done some excavating work on the sidewalk of the adjoining property and that the work “might have” affected the sidewalk in front of the gas station, in the absence of evidence that NFG’s construction work affected the condition of the hole or in any way caused or contributed to plaintiff’s fall, is irrelevant and not sufficient to defeat the motion.

Under Section 3212, an attorney’s affidavit made without personal knowledge has no value on a summary judgment motion.

Kirby v. Rouselle Corp. · filed 1981-02-26

First, the rule is so well settled as to require no citation that an attorney’s affidavit made without personal knowledge is of no value on a motion for summary judgment.

Section 3212(b) requires a summary judgment opponent to show facts requiring a trial or give an acceptable excuse for failing to do so once the movant establishes entitlement to judgment as a matter of law.

Muller v. Sturman · filed 1981-03-27(b)

Appellants have tendered evidentiary proof establishing their defense based on the Statute of Limitations “sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212, subd [b] ; see Goldstein v County of Monroe, 77 AD2d 232, 236), and plaintiff has not met her burden to show “facts sufficient to require a trial of any issue of fact” as to her continued representation by the appellants or tendered an acceptable excuse for her failure to do so (CPLR 3212, subd [b]; see Zuckerman v City of New York, 49 NY2d 557; Freedman v Chemical Constr. Corp., 43 NY2d 260).

Under CPLR 3212(b), conclusory or irrelevant allegations do not defeat summary judgment; the opposing party must show an issue supported by evidentiary facts.

Holden v. Boyle · filed 1981-05-15(b)

The existence of a bona fide issue raised by evidentiary facts and not based on conclusory or irrelevant allegations is necessary to defeat summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223; Muller v Sturman, 79 AD2d 482; Goldstein v County of Monroe, 77 AD2d 232, 236). In this case third-party plaintiffs have failed to show evidentiary facts to establish a duty on the part of the third-party defendants to trim the tree in question sufficient to require a trial of any issue of fact, i.e., whether there was a breach of duty which was the proximate cause of infant plaintiff’s injury (CPLR 3212, subd [b]; see Zuckerman v City of New York, 49 NY2d 557; Freedman v Chemical Constr. Corp., 43 NY2d 260; Basso v Miller, 40 NY2d 233, 242, supra).

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

Ahl v. Martin · filed 1981-06-04(b)

As to the second ground presented by defendants, we note that the moving party must “establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

Section 3212(b) requires the party moving for summary judgment to establish entitlement to judgment as a matter of law.

Esa v. New York Property Insurance Underwriting Ass'n · filed 1981-07-16(b)

When submitting a motion for summary judgment, it is the moving party who has the burden to convince the court that the “defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” (CPLR 3212, subd [b]; see, also, O’Connor-Sullivan, Inc. v Otto, 283 App Div 269, 272.)

Section 3212(b) requires a defendant seeking summary judgment to establish a defense sufficient to warrant judgment as a matter of law.

Ellenberg v. Schneider · filed 1981-06-25(b)

To obtain summary judgment, it is necessary that the defendant establishes his defense “sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212, subd [b]).

Section 3212(b) requires a summary judgment movant to address defenses raised in the answer; otherwise, its moving papers are inadequate.

Alfred Di Geronimo, Inc. v. Board of Education · filed 1981-08-17(b)

Since the plaintiff did not in ... any way address these defenses in its motion papers, the papers must be deemed inadequate (see CPLR 3212, subd [b]). The motion was therefore properly denied.

An affidavit opposing summary judgment must be made by someone with personal knowledge of the facts; an attorney’s affirmation without that knowledge cannot raise a triable factual issue.

417 East Realty Associates v. Ryan · filed 1981-08-19(b)

It has long been the rule in New York that an affidavit opposing a motion for summary judgment must indicate it is made by someone with the requisite personal knowledge (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 342). ... Accordingly, his two affirmations are disregarded.

Under CPLR 3212, an affidavit founded on documentary evidence can support summary judgment.

State v. Middletown Beef Co. · filed 1981-11-30

The affidavit of the Assistant Attorney-General in support of the motion pursuant to CPLR 3212 for summary judgment, was founded upon documentary evidence and was therefore sufficient as a matter of law.

Section 3212(b) permits a court to consider documentary evidence supporting a summary judgment motion when the movant’s attorney lacks personal knowledge of the facts.

Delan v. CBS, Inc. · filed 1981-12-09(b)

In keeping with the spirit of the remedy of summary judgment, and giving a liberal interpretation to CPLR 3212 (subd [b]) herein, this court can and will consider the claimed documentary evidence referred to in movant’s attorney’s affirmations (4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.09; Getlan v Hofstra Univ., 41 AD2d 830; Long Is. R.R. Co. v Grossman, 3 AD2d 763), particularly in view of the peculiar and unusual circumstances involved in the instant matter.

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment with admissible proof; the opposing party must show facts requiring a trial.

Young v. City of Binghamton · filed 1982-03-09(b)

In Friends of Animals v Associated Fur Mfrs. (46 NY2d 1065, 1067-1068), the Court of Appeals set forth the standard to be applied in evaluating the proof submitted by the parties on a motion for summary judgment: “To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. ... In view of the observations made, the motion for summary judgment is granted, without motion costs.

Section 3212(b)'s requirement for a submission by persons with knowledge of the facts can be satisfied by attorneys' affidavits and memorandum of law, depending on the nature of the claims.

Ass'n v. State of New York Department of Mental Hygiene · filed 1982-01-11(b)

The affidavits and memorandum of law submitted by the attorneys for the respective parties constitute a submission by those with knowledge of the facts, as required by CPLR 3212 (subd [b]), in view of the nature of causes of action pleaded in the complaint.

Under CPLR 3212, a party opposing summary judgment with an expert affidavit must identify the expert and provide the expert’s qualifications and the facts supporting the opinion.

Coley v. Michelin Tire Corp. · filed 1982-05-24

While pursuant to this court’s holding the name of plaintiffs’ expert need not have been revealed at the discovery stage, such disclosure is appropriate when the expert’s affidavit is submitted in opposition to a motion for summary judgment, pursuant to CPLR 3212, which imposes upon the plaintiffs the obligation to produce all the evidence within their ken, as upon a trial (Five Boro Elec. Contrs. Assn. v City of New York, 37 AD2d 807).

CPLR 3212 does not permit summary judgment based on a traffic-infraction conviction after a not-guilty trial when the conviction is inadmissible in the related civil action.

Calia v. Khoury · filed 1982-06-01

However, the Justice Court conviction may not serve as a basis for the granting of the motion for summary judgment.

To defeat summary judgment, the opposing party must set forth sufficient facts to warrant a trial.

Revelstoke Properties, Inc. v. Beaumont Neckwear, Inc. · filed 1982-06-25(b)

The opposing side must set forth sufficient facts to warrant a trial in order to defeat the motion. ... The respondent has failed to allege any facts which would operate to extinguish the petitioner’s right to possession of the premises as a result of the termination of the lease between the parties. Thus, it appears that there are no triable issues of fact.

Once the movant makes a prima facie showing, § 3212(b) requires the opposing party to produce evidence sufficient to require a trial of a factual issue; hearsay alone is insufficient.

Egleston v. Kalamarides · filed 1982-07-09(b)

Plaintiff thus came under an obligation to produce evidence “sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b]).

CPLR 3212(b) requires a summary judgment motion to be supported by an affidavit from a person with knowledge of the facts and admissible evidence.

Blanc v. Windham Mountain Club, Inc. · filed 1982-08-27(b)

CPLR 3212 (subd [b]) directs that such motion be supported by affidavit of a party with requisite knowledge of the facts and by tender of admissible evidentiary proof.

Section 3212(b) requires a defendant seeking summary judgment to submit admissible evidence sufficient to warrant judgment in its favor.

Mack v. Arnold Gregory Memorial Hospital · filed 1982-11-09(b)

In order to prevail on a motion for summary judgment, a defendant must tender evidentiary proof in admissible form sufficient to warrant the court in directing judgment in his behalf (Zuckerman v City of New York, 49 NY2d 557; CPLR 3212, subd [b]). The Napodano affidavit clearly fails that test.

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

Wehringer v. Helmsley-Spear, Inc. · filed 1982-12-23(b)

Defendants, however, in support of their motion, did not conform to the requisite standard contained in CPLR 3212 (subd [b]) having failed to submit an affidavit by a person with knowledge of the facts.

A party opposing summary judgment must present evidence that raises a triable issue; conclusory assertions about a contractor’s license do not suffice.

Dartmouth Plan, Inc. v. Valle · filed 1983-01-14

The affidavit in opposition does not raise a triable issue as to whether the contractor was licensed. ... The motion of defendant Olga Valle for partial summary judgment is granted.

An affirmation by counsel naming potential witnesses does not raise a triable issue of fact when it fails to rebut the moving party’s affidavit.

Stratton v. City of Beacon · filed 1983-01-17

The affirmation by plaintiffs’ counsel, which named potential witnesses, is insufficient to rebut the commissioner’s affidavit to the extent necessary to raise a triable issue of fact ... Accordingly, appellant’s motion for summary judgment should have been granted and the complaint dismissed as to it.

CPLR 3212 permits summary judgment when the opposing party fails to raise a triable issue of fact.

Melzer v. Robbins · filed 1983-02-07

Order reversed, on the law, with $50 costs and disbursements, and plaintiffs’ motion for summary judgment is granted. Defendants have failed to raise a triable issue of fact with respect to plaintiffs’ adverse possession claim.

Section 3212 requires a court deciding summary judgment to determine whether a triable issue exists, leaving disputed facts for trial.

Agudelo v. Pan American World Airways, Inc. · filed 1983-02-16

Here, on a motion for summary judgment, the sole issue involved is issue finding, and not issue determination.

CPLR 3212 requires denial of summary judgment when the motion papers present triable issues of fact.

Joseph Weiss & Sons, Inc. v. P. J. Carlin Construction Co. · filed 1983-02-22

Order dated November 12, 1981 reversed and order dated January 12, 1982 reversed, insofar as appealed from, respondents’ motion for summary judgment denied and plaintiff’s motion for leave to serve a supplemental summons and an amended complaint granted as to all defendants. ... The papers submitted on the motions, including the verified amended complaint, and the addition of Nycon Capital Corp. as a party defendant, present triable issues of fact.

Summary judgment requires the absence of a material, triable issue of fact.

Vermont Morgan Corp. v. Ringer Enterprises, Inc. · filed 1983-03-10

To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth-Century-Fox Film Corp., 3 NY2d 395, 404).

To defeat summary judgment, the opposing party must produce admissible evidence sufficient to require a trial of material factual questions.

Mattison v. Hudson Falls Central School District · filed 1983-01-20(b)

In order to defeat a motion for summary judgment, the opposing party must “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact” ... In our opinion, plaintiffs have failed to produce such evidence and, accordingly, defendant’s motion for summary judgment should have been granted.

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

Urbank v. Big Scott Stores Corp. · filed 1983-02-10(b)

It cannot be said that the proof in this record is sufficient to establish, as a matter of law, that defendant was not responsible for the institution of the criminal action against plaintiff (see CPLR 3212, subd [b]).

A party seeking summary judgment must offer sufficient evidence to support its motion, even if the opposing party submits no affidavits supporting its allegations.

James McKinney & Son, Inc. v. Lake Placid 1980 Olympic Games, Inc. · filed 1983-03-10

While plaintiff has not submitted affidavits indicating such conduct, neither has Gilbane proffered evidence sufficient to support its motion. In these circumstances, denial of Gilbane’s motion without prejudice to a further summary judgment motion was appropriate.

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment with admissible proof; conclusory allegations do not create a triable issue.

Seyfried v. Greenspan · filed 1983-02-14(b)

It has been consistently held that to obtain summary judgment “it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form”

A party opposing summary judgment under CPLR 3212 must present affirmative proof of a genuine triable issue of fact.

Kornfeld v. NRX Technologies, Inc. · filed 1983-04-21

To defeat a motion for summary judgment, whether brought under CPLR 3212 or in lieu of complaint under CPLR 3213, the opposing party must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist {Chase Manhattan Bank, N.A. v Kahn, supra; Federal Deposit Ins. Corp. v A-Leet Commercial Servs., 70 AD2d 627).

A party opposing summary judgment must submit evidentiary proof sufficient to raise a factual issue.

Scherer v. Westmoreland Sanctuary, Inc. · filed 1983-06-13

Plaintiffs having failed to tender any evidentiary proof in opposition, the motion for summary judgment was improperly denied.

A party opposing summary judgment must present admissible evidence of a factual issue requiring trial; counsel’s hearsay affidavit does not suffice.

Carey v. Campbell · filed 1983-04-21

While an affidavit or affirmation of an attorney, as was submitted here in opposition to defendant’s motion, may serve as the vehicle for the submission of attachments which can be considered on a motion for summary judgment, the submission of a hearsay affidavit by counsel, as here, does not satisfy the requirement.

Section 3212(b) permits summary judgment when the movant tenders sufficient evidence to warrant judgment as a matter of law.

Carbonic Sales & Service, Inc. v. Plaza at Latham Associates · filed 1983-07-21(b)

Since plaintiff included among its papers documentation from Coca Cola confirming its agency status, we find sufficient evidentiary proof was tendered to warrant judgment in plaintiff’s favor as a matter of law (CPLR 3212, subd [b]).

A summary judgment motion requires a supporting affidavit from a person with knowledge of the facts.

Yalkowsky v. Shedler · filed 1983-05-24(b)

defendant Shedler’s papers in support of his cross application for summary judgment do not include an affidavit “by a person having knowledge of the facts”.

Section 3212(b) permits summary judgment despite hearsay in supporting affidavits when the facts are undisputed and no issue requires a trial.

Ehrlich v. Aetna Casualty & Surety Co. · filed 1983-06-16(b)

Even though a paucity of facts are presented and they are spawned from hearsay, they are not directly denied or disputed, so that, no facts sufficient to require a trial in this declaratory judgment action having been demonstrated, the court was entitled as a matter of law to grant judgment (CPLR 3212, subd [b]).

Under CPLR 3212(b), a defendant seeking summary judgment must provide admissible evidence sufficient to warrant judgment as a matter of law.

La Frenire v. Capital District Transportation Authority · filed 1983-07-21(b)

To obtain summary judgment dismissing the complaint on the ground that plaintiff did not sustain a “serious injury” within the meaning of the Insurance Law, defendants have the burden of establishing a defense “ ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,1067).

Under CPLR 3212(b), a party moving for summary judgment to dismiss a counterclaim must first present evidentiary facts showing that the counterclaim lacks merit.

Kasinski v. Questel · filed 1984-03-06(b)

Here plaintiff, as the moving party seeking to dismiss the counterclaim, has the burden in the first instance of presenting evidentiary facts showing that defendant does not have a meritorious cause of action (CPLR 3212, subd [b]). Since plaintiff has failed to submit facts showing that the conveyance was not fraudulent under the Debtor and Creditor Law, she is not entitled to summary judgment.

Section 3212(b) requires the party moving for summary judgment to establish that the claim has no merit.

Stowell v. Cicero Cheese Manufacturing Corp. · filed 1984-03-06(b)

Defendant, as the moving party, has the burden to establish that the cause of action has no merit (CPLR 3212, subd [b]), and he has not demonstrated that the transfer of corporate assets to him was made for fair consideration.

Section 3212(b) permits an affidavit from a person with knowledge of the facts; the person’s interest in the case bears on credibility.

Cohen v. Herbal Concepts, Inc. · filed 1984-03-08(b)

In any event, Mr. Cohen’s statement is competent and does have probative value since he is clearly a person with knowledge of the facts (CPLR 3212, subd [b]). The fact that he is an interested party only bears upon his credibility and does not affect the probative weight of his affidavit.

Section 3212(b) requires a supporting statement about disputed facts to come from someone with personal knowledge of those facts.

Hoven v. Hoven · filed 1984-03-08(b)

The statement, being that of plaintiff’s attorney who had no personal knowledge of the transfer, must be considered a nullity (Roche v Hearst Corp., 72 AD2d 245, 249, affd 53 NY2d 767; see CPLR 3212, subd [b]).

CPLR 3212(b) permits denial of partial summary judgment when the papers submitted by both sides are not made by persons with knowledge of the facts.

In re the Estate of Harris · filed 1984-03-08(b)

To this end it is first noted that although this motion is for summary relief, neither the moving papers nor those submitted in opposition are made by a person having knowledge of the facts. This circumstance is ground enough to deny the present request for partial judgment either in favor of or against the moving parties (CPLR 3212, subd [b]; Indig v Finkelstein, 23 NY2d 728).

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

Kruger Pulp & Paper Sales, Inc. v. Intact Containers, Inc. · filed 1984-04-16(b)

It has been consistently held that to obtain summary judgment “it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; see, also, Shaw v Time-Life Records, 38 NY2d 201; Capelin Assoc, v Globe Mfg. Corp., 34 NY2d 338).

A party opposing summary judgment must present evidentiary facts; conclusory allegations and speculation are insufficient.

Handlin v. Burkhart · filed 1984-05-21

Mataxes’ affidavit and supporting documentation in opposition to the motion for summary judgment is devoid of the requisite evidentiary facts needed to establish that defendants were motivated by malice.

A motion for summary judgment must be supported by an affidavit from a person with knowledge of the facts.

Albert G. Ruben & Co. v. Fritzen · filed 1984-05-31(b)

Such a motion must be supported by an affidavit “by a person having knowledge of the facts” (CPLR 3212, subd [b]). This motion was not supported by an affidavit by a person having knowledge of the facts. The only papers submitted in support of the motion are by attorneys who do not have knowledge of the facts.