N.Y. C.P.L.R. § 3212

Section 3212(b) requires a defendant moving for summary judgment to present admissible evidence showing that the claim has no merit; the opposing party must then present admissible evidence of a factual issue or an acceptable excuse.

GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc. · filed 1985-12-17(b)

A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

A summary judgment affidavit from someone without personal knowledge of the facts lacks probative value.

Diamond Den, Ltd. v. Jefferson Insurance · filed 1987-02-27(b)

Moreover, defendant’s reliance upon an affidavit by its attorney, who lacked personal knowledge of the facts, is misplaced since such an affidavit lacks probative value (see, CPLR 3212 [b]; Champion v Wilsey, 114 AD2d 630, 631; lv dismissed 66 NY2d 606; Mack v Gregory Mem. Hosp., 90 AD2d 969; cf., Caramanica v State Farm Fire & Cas. Co., 110 AD2d 869).

CPLR 3212 requires evidentiary facts to raise a triable issue on a summary judgment motion; general denials are insufficient.

Siders v. Odak · filed 1987-03-26

Defendants’ general denials failed to raise a triable issue as to whether they waived the written notice requirement.

A summary judgment movant must first submit admissible proof establishing entitlement to judgment as a matter of law.

Law Firm of Ira H. Leibowitz, Lasky & Peterson v. Sikowitz · filed 1987-04-27(b)

The movant seeking summary judgment has the initial burden of coming forward with evidentiary proof in admissible form to establish his cause of action or defense sufficiently to warrant entry of judgment in his favor as a matter of law (CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967).

CPLR 3212 requires a summary judgment movant to establish a cause of action or defense sufficiently to warrant judgment as a matter of law.

Marrazzo v. Picolo · filed 1987-05-04

In order to obtain summary judgment the movant must establish his or her cause of action or defense sufficiently to warrant the court in directing judgment in his or her favor as a matter of law (CPLR 3212; Computer Strategies v Commodore Business Machs., 105 AD2d 167, 175, rearg and lv denied 110 AD2d 743).

Section 3212(b) requires opposition to summary judgment to include an affidavit from a person with knowledge of the facts; an attorney’s affirmation alone is insufficient.

Landau v. Salzman · filed 1987-04-27(b)

We also note that the plaintiffs’ opposition to the motion for partial summary judgment was insufficient as there was no affidavit by a person with knowledge of the facts, merely the plaintiff’s attorneys’ affirmation (see, CPLR 3212 [b]; Zuckerman v City of New York, supra).

Under CPLR 3212, once a movant establishes its claim as a matter of law, the opponent must present admissible evidence of a triable issue of fact.

National Westminster Bank, U.S.A. v. Barrier Technology Corp. · filed 1987-06-08

It was then incumbent upon the defendants to demonstrate, by admissible evidence, the existence of a triable issue of fact (see, Zuckerman v City of New York, supra, at 560; Ihmels v Kahn, supra; Kruger Pulp & Paper Sales v Intact Containers, supra, at 895), and the defendants failed to do so.

A summary judgment movant must submit sufficient evidence to establish its defense as a matter of law.

Augeri v. Massoff · filed 1987-11-09(b)

The evidentiary material submitted by the defendant hospital is insufficient to establish as a matter of law that it may not be held vicariously liable for any negligence of the attending orthopedic surgeon called in to treat the plaintiff.

Under CPLR 3212(b), a party seeking summary judgment must show enough to warrant judgment in its favor as a matter of law.

Titus v. Hill · filed 1987-11-10(b)

It follows that defendants failed to meet their burden "sufficiently to warrant the court as a matter of law in directing judgment in [their] favor” (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557).

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

People v. D.B.M. International Photo Corp. · filed 1987-12-01(b)

In order "[t]o obtain summary judgment it is necessary that the movant establish his cause of action * * * '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 [1979]).

A party seeking summary judgment must submit admissible evidence supporting the motion; if the moving party fails to do so, the court need not assess the opposition.

Kaufman v. Kaufman · filed 1987-12-28

However, the defendant has failed to tender "evidentiary proof in admissible form” to support his contention that the action is meritless so as to warrant the granting of summary judgment (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Therefore, we need not consider the adequacy of plaintiff’s opposition to the motion.

Section 3212(b) requires the movant to present evidentiary facts warranting summary judgment; an opponent’s conclusory affirmation without personal knowledge or supporting documents is insufficient to defeat the motion.

Fischer v. Battery Building Maintenance Co. · filed 1987-12-08(b)

While Sarwyn has met its burden of presenting evidentiary facts which establish its defense sufficiently to warrant summary judgment as a matter of law, BBM has failed to meet its burden in opposition (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Borchardt v New York Life Ins. Co., 102 AD2d 465 [1st Dept 1984], affd 63 NY2d 1000 [1984]). BBM’s affirmation in opposition, which is made by a person without personal knowledge of the facts, lacks supporting documentation, and contains conclusory allegations of fact, and is thus insufficient to defeat Sarwyn’s summary judgment motion (Freedman v Chemical Constr. Corp., 43 NY2d 260 [1977]; Borchardt v New York Life Ins. Co., supra, at 467).

Section 3212(b) requires evidence in admissible form to support a summary judgment motion; a physician’s unsworn letter is insufficient.

Graves v. Rochester General Hospital · filed 1987-12-18(b)

The Hospital’s reliance upon a letter written by a physician who examined plaintiff at the request of defense counsel is misplaced because the letter is not an affidavit (see, CPLR 3212 [b]).

A summary judgment motion may be supported by an attorney’s affidavit attaching deposition testimony and other proof, even if the attorney lacks personal knowledge of the facts.

Nicoletta v. Rochester Eye & Human Parts Bank, Inc. · filed 1987-09-18

However, the Court of Appeals has upheld the propriety of such a procedure, stating that "[t]he fact that defendant’s supporting proof was placed before the court by way of an attorney’s affidavit annexing plaintiff’s deposition testimony and other proof, rather than affidavits of fact on personal knowledge, does not defeat defendant’s right to summary judgment.” ... Therefore, the court finds that the Hospital has brought its motion in proper form and turns to the merits of its contentions.

Under CPLR 3212(b), a summary judgment movant must establish a defense sufficient to warrant judgment as a matter of law.

Badillo v. Nova Clutch & Brake, Inc. · filed 1988-02-08(b)

However, SMC has failed to meet its burden of establishing a defense "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]; see also, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068; Coley v Michelin Tire Corp., 99 AD2d 795, 796).

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

William Iselin & Co. v. Landau · filed 1988-03-22(b)

In moving for summary judgment, Mann was required to establish its defense " 'sufficiently to warrant the court as a matter of law in directing judgment’ ” in its favor (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Mann met that burden by demonstrating the absence of either a contract or a relationship approaching privity with Iselin.

A summary judgment movant must present enough evidence to establish entitlement to judgment as a matter of law and eliminate material factual disputes.

Schiller v. Grafton · filed 1988-05-09(b)

The proponent on a motion for summary judgment must make a prima facie showing of entitlement as a matter of law to judgment by offering sufficient evidence to remove any material questions of fact.

Section 3212(b) does not permit summary judgment based on a supporting affidavit from someone who lacks personal knowledge of the relevant facts.

We Try Harder, Inc. v. Dave Ball Chevrolet, Inc. · filed 1988-03-04(b)

In support of its motion, plaintiff submitted only an affidavit of its damage control manager, who lacked personal knowledge of the facts and circumstances surrounding the theft of the vehicle. That affidavit is insufficient to support a grant of summary judgment (CPLR 3212 [b]; Dempsey v Intercontinental Hotel Corp., 126 AD2d 477, 479; Onondaga Soil Testing v Barton, Brown, Clyde & Loguidice, 69 AD2d 984).

An attorney’s affidavit supported by documentary evidence can justify summary judgment when the opposing party fails to make a prima facie showing.

Osowicki v. Young · filed 1988-05-26(b)

In the absence of any showing by plaintiff of a prima facie case, and based upon the affidavit of defendants’ attorney together with documentary evidence, Supreme Court correctly awarded summary judgment dismissing the complaint (see, Lowe v Bennett, supra).

A party opposing summary judgment must offer evidence that raises a factual issue to defeat the motion.

Liberty Mutual Insurance v. Fireman's Fund Insurance Companies · filed 1988-06-08(b)

Atlantic has failed to offer any evidence of bad faith which would raise a factual issue, and thus has failed to meet its burden of proof to defeat Federal’s motion for summary judgment.

Section 3212 shifts the burden to the opponent of summary judgment to produce admissible proof of a triable issue after the movant makes a prima facie showing of entitlement to judgment.

Clark v. Travelers Indemnity Co. of America · filed 1988-07-25

The defendant has "ma[d]e 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). The burden therefore "shift[ed] to the [plaintiff] to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp., supra, at 324; Zuckerman v City of New York, 49 NY2d 557, 562). In opposing the cross motion, the plaintiff has not met her burden.

A summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law; a remaining triable issue of fact requires denial of the motion.

Buckley v. Rockefeller Group, Inc. · filed 1988-10-03(b)

The appellants failed to produce a lease or other documentation indicating the transfer of the operation and control of the building to another party and therefore failed to make a prima facie showing of entitlement to judgment as a matter of law (cf., McGill v Caldors, Inc., 135 AD2d 1041; Bellen v Lomanto, 125 AD2d 905, lv denied 69 NY2d 610). Since a triable issue of fact remains with regard to the appellants’ liability in this action, the motion for summary judgment was properly denied.

A defendant seeking summary judgment must submit enough evidence to establish its defense as a matter of law.

Casucci v. Kenmore Mercy Hospital · filed 1988-11-15(b)

To obtain summary judgment a defendant must submit sufficient evidentiary proof to establish its defense as a matter of law (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). The evidentiary material submitted by defendant hospital is insufficient to establish as a matter of law that it may not be held vicariously liable for the negligence of the emergency room physician who treated plaintiff.

Under CPLR 3212, a party opposing summary judgment must present admissible evidence sufficient to require a trial of material facts.

Alicea v. City of New York · filed 1988-12-06

An examination of the record of the matter before us fails to show "evidentiary proof in admissible form sufficient to require a trial of material questions of fact” (Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425).

Section 3212 permits summary judgment when the opposing papers raise no issue of fact requiring a trial.

Murphy v. Citibank, N. A. · filed 1989-04-27

In this court’s opinion, the motion by Citibank for summary judgment dismissing the complaint must be granted. Plaintiff’s papers in opposition to this motion fail to raise any issues of fact which necessitate a trial of this action.

A summary judgment movant must first submit admissible evidence establishing entitlement to judgment; if the movant fails, the motion is denied regardless of the opposing papers.

Vozdik v. Frederick · filed 1989-01-12(b)

... modifying in any way a party’s initial burden, in moving for summary judgment, to support the motion by tender of evidentiary proof in admissible form (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; see also, CPLR 3212 [b]).

A summary judgment movant must establish its cause of action sufficiently to warrant judgment as a matter of law.

Spancrete Northeast, Inc. v. Elite Associates, Inc. · filed 1989-03-27(b)

We note that the plaintiff’s cross motion for summary judgment was properly denied, as the moving papers do not establish its cause of action sufficiently to warrant the court in directing judgment as a matter of law in its favor (see, CPLR 3212 [b]; cf., Kruger Pulp & Paper Sales v Intact Containers, 100 AD2d 894). Specifically, the affidavit of the plaintiff’s treasurer does not suffice to establish that plaintiff fully performed the subcontract work in accordance with the architect’s contract documents.

Under CPLR 3212, a party opposing summary judgment must present admissible evidence showing a factual issue requiring trial.

Stagnitta v. County of Onondaga · filed 1989-02-03

Plaintiff has failed to meet her burden of showing the existence of a factual issue requiring trial by evidentiary proof in admissible form (see, CPLR 3212; Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425-426; Zuckerman v City of New York, 49 NY2d 557).

Once the moving party shows entitlement to summary judgment, the opposing party must produce admissible evidence of facts requiring a trial.

Coffey v. United States Gypsum Co. · filed 1989-04-14(b)

Defendants met their initial burden of showing entitlement to summary judgment. Therefore, it was incumbent upon plaintiffs to "show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]) by producing evidentiary proof in admissible form (Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Furs Mfrs., 46 NY2d 1065, 1067-1068).

A party opposing summary judgment under CPLR 3212 must offer evidence countering the facts shown by the moving party’s documentary evidence.

Matthews v. Schlumberger Ltd. · filed 1994-03-31

With respect to that prong of defendants’ motion seeking summary judgment, plaintiffs were obliged to oppose with evidence countering the facts shown by defendants’ documentary evidence.

Section 3212(b) permits summary judgment when admissible proof establishes the movant’s position and the opposing party raises no genuine issue of fact.

Arcara v. Whytas · filed 1995-09-29(b)

Defendants established by undisputed proof in admissible form that the dog had never before bitten anyone and that it had never growled or bared its teeth when someone approached or otherwise exhibited vicious or dangerous propensities (see, CPLR 3212 [b]; Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425; Strunk v Zoltanski, 62 NY2d 572, 574-576; Wilson v Bruce, 198 AD2d 664, lv denied 83 NY2d 752; Harris v Kasperak, 172 AD2d 1062).

Section 3212(b) requires a summary judgment movant to establish entitlement to judgment through admissible proof showing no material, triable issue of fact.

Menekou v. Crean · filed 1995-12-04(b)

In order to grant summary judgment, a court must find that there are no material, triable issues of fact (see, e.g., Thomas v New York City Tr. Auth., 194 AD2d 663), that the movant has established his cause of action or defense sufficiently to warrant the court, as a matter of law, directing judgment in his favor (CPLR 3212 [b]), and that the proof tendered is in admissible form (see, e.g., Zuckerman v City of New York, 49 NY2d 557; Naughton v Mueller, 203 AD2d 341).

Under CPLR 3212, a summary judgment movant must present sufficient evidence showing entitlement to judgment as a matter of law and the absence of a material factual dispute.

Pollock v. Toyota Motor Sales U.S.A., Inc. · filed 1995-12-07

Defendant, as proponent of the motion for summary judgment, has the burden of showing its entitlement to judgment as a matter of law based on sufficient evidence demonstrating the absence of any material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; see also, CPLR 3212). Defendant has met that burden.

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

Underwriters at Interest v. Abramson Bros. · filed 1996-09-26(b)

The motion court properly found that defendant-appellant failed to establish a defense sufficient to warrant direction of judgment in its favor as a matter of law by tender of proof in admissible form (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

CPLR 3212(b) requires a party moving for summary judgment to support its motion with admissible evidence establishing an initial entitlement to judgment.

Sunfirst Federal Credit Union v. Empire Insurance · filed 1997-05-30(b)

Defendant satisfied its initial burden by submitting evidence in admissible form establishing that the complaint has no merit because defendant acted in reliance upon an MV-901 form signed by plaintiff, which indicated that plaintiff’s security interest in the automobile financed by plaintiff had been satisfied (see, CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires admissible proof supporting summary judgment and proof of a triable issue of fact to defeat it.

Peek v. Williamsville Board of Education · filed 1998-02-04(b)

In addition, defendants submitted evidentiary proof in admissible form demonstrating that the remaining portions of the first and third causes of action, alleging violations of plaintiffs civil and constitutional rights under Federal law, have no merit (see, CPLR 3212 [b]). Plaintiff failed to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). We therefore modify the order by granting defendants’ motion for summary judgment dismissing the complaint.

Section 3212(a)’s requirement that an answer be served first does not make a CPLR 3211(c) request improper.

Luke Industries, Inc. v. Prominent Apparel (America), Inc. · filed 1998-03-05(a)

Although it was inappropriate for the motion court to characterize defendants’ CPLR 3211 (c) request as an attempt “to subvert the requirement of CPLR 3212 (a) [that] an answer be served first”, rejection of the request was a proper exercise of discretion (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

Section 3212 requires an opposing party to present admissible evidence raising a triable issue to defeat summary judgment.

Cayo v. Supermarkets General Corp. · filed 1998-02-09

Nevertheless, there was insufficient admissible evidence presented by the plaintiffs, as the opposing parties, to raise a triable issue that the sexual assault of the infant plaintiff was foreseeable or that the defendant’s actions were a proximate cause of the injury (see, CPLR 3212; Zuckerman v City of New York, 49 *422NY2d 557, 562). Under the circumstances, the court erred in denying the defendant’s motion for summary judgment.

Under CPLR 3212, an attorney’s affidavit alone is insufficient to raise a factual issue in opposition to summary judgment.

Gontarzewski v. City of New York · filed 1999-01-07

In reply, plaintiff correctly noted that the affidavit of counsel is insufficient to raise an issue of fact in opposition to a motion for summary judgment.

An engineer’s report submitted in opposition to summary judgment is inadmissible if it is not sworn before a notary public.

Pamas v. Dickson · filed 1999-12-06(b)

The engineer’s report submitted by the plaintiffs in opposition to the cross motion was not made in the form of an affidavit or affirmation before a notary public and therefore did not constitute admissible evidence.

A defendant seeking summary judgment must present admissible evidence showing that the plaintiff’s action has no merit.

Young v. Selar Realty Corp. · filed 2000-01-31(b)

The defendants failed to present admissible evidence showing that the plaintiffs action had no merit ... Accordingly, the Supreme Court properly denied their motion for summary judgment dismissing the complaint.

A party opposing summary judgment must present admissible proof of a triable issue; photographs without an affidavit establishing that they fairly and accurately depict the relevant condition are insufficient.

Lakhan v. Singh · filed 2000-02-14(b)

The copies of photographs submitted, by the plaintiffs in opposition to the summary judgment motion were not accompanied by an affidavit of the plaintiff Sara Lakhan indicating that they fairly and accurately represented the condition of the sidewalk at the time of the incident, and thus, did not constitute proof in admissible form (see, Lewis v General Elec. Co., 145 AD2d 728, 729).

Section 3212(b) requires a summary judgment movant to submit the pleadings and proof in evidentiary form, including an affidavit based on personal knowledge.

Kretschmann v. Board of Education of the Corning Painted Post School District · filed 2000-04-11(b)

To make such a showing, the moving party’s supporting papers must include allegations in affidavit format, made by a party with personal knowledge of the underlying facts (CPLR 3212 [b]), a copy of the pleadings, and other available proof such as depositions and written admissions; proof must be in evidentiary form.

An affidavit opposing summary judgment must raise a triable issue of fact.

Davis v. Brightside Fire Protection Inc. · filed 2000-08-07(b)

In any event, the affidavit of Shawn Sosnik fails to raise a triable issue of fact (see, CPLR 3212 [b]).

Under CPLR 3212(b), an unnotarized chiropractor affirmation and unsworn medical reports are not competent evidence to raise a triable issue of fact in opposition to summary judgment.

Santoro v. Daniel · filed 2000-10-02(b)

The affirmation of the plaintiffs treating chiropractor, which was not notarized, and unsworn medical reports submitted by the plaintiff in opposition to the motion did not constitute competent evidence (see, Feintuch v Grella, 209 AD2d 377; Pagano v Kingsbury, 182 AD2d 268). Accordingly, the plaintiff failed to raise a triable issue of fact (see, CPLR 3212 [b]).

CPLR 3212 permits partial summary judgment when the opposing party offers only speculation and unsupported suspicions instead of evidence raising an issue of fact.

Affatato v. Standard Fire Insurance · filed 2000-11-13

The defendant’s mere speculation about the plaintiffs financial situation, as well as its unsupported suspicion that the theft of fragile items was improbable, did not demonstrate the existence of issues of fact as to whether the plaintiff or her husband intentionally concealed or misrepresented any material fact or circumstance relating to the theft or engaged in fraudulent conduct (cf., Stone v Continental Ins. Co., 234 AD2d 282; Ashline v Genesee Patrons Coop. Ins. Co., 224 AD2d 847).

Under CPLR 3212(b), incompetent medical evidence submitted in opposition to summary judgment does not raise a triable issue of fact.

Burns v. Japngie · filed 2000-12-04(b)

The medical evidence submitted by Burns in opposition to the motion was not competent (see, Feintuch v Grella, 209 AD2d 377) and, thus, did not raise a triable issue of fact (see, CPLR 3212 [b]).

Section 3212 requires sufficient evidence to support a summary judgment motion or defeat an opposing motion.

In re the Estate of Cagney · filed 2001-01-09

The petitioners/respondents’ cross motion is supported only by an attorney’s affidavit with two exhibits, none of which, individually or collectively, is. sufficient to either withstand the executors’ summary judgment motion or sustain their own.

CPLR 3212(b) requires a party seeking summary judgment to tender evidentiary proof in admissible form.

Valentino v. County of Tompkins · filed 2001-06-29(b)

Accordingly, defendants failed to meet their burden as the party seeking summary judgment to tender evidentiary proof in admissible form (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

Section 3212(b) requires a party opposing summary judgment to submit proof in admissible form.

Davis v. Golub Corp. · filed 2001-09-20(b)

This statement satisfies none of the exceptions to the rule against the admission of hearsay evidence and is, accordingly, in violation of the requirement that proof submitted by the opponent of a summary judgment motion must be in admissible form (see, CPLR 3212 [b]).

Evidence submitted on a CPLR 3212 summary judgment motion must be in admissible form; the court disregards unsigned interview transcripts when no excuse is given for their form.

Reilly v. Newireen Associates · filed 2003-03-13

As these unsigned transcripts do not constitute evidence in admissible form under CPLR 3212, and no excuse was provided for failing to provide them in proper form, they will be given no consideration by this Court.

CPLR 3212 requires a summary judgment movant to submit admissible evidence sufficient to warrant judgment as a matter of law.

Wells v. Monsen · filed 2004-05-03

The plaintiffs’ motion was properly denied since the papers submitted in support of their motion were not in admissible form (see CPLR 3212, 4518; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]; Lawlor v County of Nassau, 166 AD2d 692 [1990]; Krupp v Aetna Life & Cas. Co., 103 AD2d 252 [1984]).

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

Gomez v. City of New York · filed 2006-05-16(b)

The plaintiffs failed to put forth evidence in admissible form establishing that they are entitled to judgment as a matter of law on the claim alleging an unconstitutional taking of their property (see CPLR 3212 [b]).

Section 3212(b) requires a summary judgment movant to support factual claims with evidence in admissible form.

Dairo v. Rockaway Boulevard Properties, LLC · filed 2007-10-02(b)

While the plaintiff alleges that the defendant frustrated her attempt to obtain a “commitment” by denying the appraiser access to the property (see Wells v Meader, 192 AD2d 827, 828-829 [1993]), she failed to submit evidence in admissible form demonstrating as much (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Section 3212(b) requires a party seeking summary judgment to submit evidence in admissible form.

In re Verdeschi · filed 2009-06-23(b)

Moreover, the Surrogate’s Court properly denied the appellant’s cross motion for summary judgment dismissing the petition insofar as asserted against him on the ground that he failed to submit evidence in admissible form (see CPLR 3212 [b]).

Under CPLR 3212(b), an affidavit lacking personal knowledge of when a dangerous condition was last inspected has no evidentiary value on that issue.

Sherry v. Wal-Mart Stores East, L.P. · filed 2009-11-24(b)

The affidavit of its manager at the subject store on the date of the accident demonstrated that he had no personal knowledge of when the subject display was last stocked or inspected prior to the accident, and thus, it was of no evidentiary value with respect to such facts (see CPLR 3212 [b]; Roy v City of New York, 65 AD3d 1030 [2009]; Arzola u Boston Props. Ltd., Partnership, 63 AD3d at 656; Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1072 [2009]; Birnbaum v New York Racing Assn, Inc., 57 AD3d at 598-599; Rosenthal v Village of Quogue, 205 AD2d 745, 746 [1994]).

When the essential facts are undisputed and the motion raises only legal issues, party affidavits are unnecessary.

1212 Grand Concourse LLC v. Ynguil · filed 2010-01-08

The petitioners, in their cross motion, object that the respondents have failed to attach affidavits of the parties to their motion papers. However, as both sides agree about the essential facts, and the dispute revolves around purely legal issues, such affidavits would be irrelevant.

A summary judgment motion must be supported by an affidavit, a copy of the pleadings, and other available proof.

Ahern v. Shepherd · filed 2011-11-29(b)

CPLR 3212 (b) provides that “[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.”

Section 3212(b) does not require a summary judgment movant to submit a bill of particulars because it is not a pleading.

OSGOOD, JERRY v. KDM DEVELOPMENT CORP · filed 2012-02-10(b)

“ ‘[A] bill of particulars is not a pleading, but just an expansion of one’ ” (Abbotoy v Kurss, 52 AD3d 1311, 1312, quoting Siegel, NY Prac § 238, at 401 [4th ed]), and thus Royal’s failure to support its motion with a copy thereof does not require denial of the motion (see generally CPLR 3212 [b]; D.J. Enters. of WNY v Benderson, 294 AD2d 825; Niles v County of Chautauqua, 285 AD2d 988).

A summary judgment movant must establish its prima facie entitlement to judgment with proof in admissible form.

US Bank National Ass'n v. Madero · filed 2015-02-11(b)

On its motion for summary judgment, the plaintiff had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

A summary judgment motion must be supported by an affidavit from someone with knowledge of the facts, the pleadings, and other available proof.

Beniquez v. Teresharan Land Co. of Manhattan · filed 2017-01-13(b)

Thus, the motion must be supported “by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions” (CPLR 3212 [b]).

An assignee seeking summary judgment on a debt must provide admissible proof of the debt, a complete chain of assignment, and notice to the debtor.

Cach LLC v. George · filed 2017-05-10

Finally, and particularly fatal to plaintiff’s application, is that nothing in its motion papers indicates that defendant was ever notified of the assignment. Thus, numerous deficiencies in plaintiff’s motion preclude the granting of summary judgment.

Section 3212(b) requires a summary judgment movant to submit proof in admissible form.

DeLuca v. RLI Insurance Co. · filed 2017-08-16(b)

In that respect, the defendant failed to submit proof in admissible form (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; JP Morgan Chase Bank, N.A. v RADS Group, Inc., 88 AD3d 766, 767 [2011]).

Section 3212(b) permits summary judgment despite a hearsay objection to a supporting affirmation when other evidence sufficiently supports the motion.

Spence v. New York State Department of Agriculture & Markets · filed 2017-10-26(b)

We find unpersuasive petitioners’ contention that Supreme Court impermissibly considered hearsay statements and allegations contained with Cuddeback’s affirmation (see CPLR 3212 [b]). Notably, in rendering its determination, Supreme Court expressly indicated that it did not rely solely on Cud-deback’s affirmation. In any event, there was sufficient other evidence in the record demonstrating that the Department’s interests in avoiding the appearance of a conflict of interest justified the restraint on protected speech caused by its disap-provals and subsequent policy revision.

Under CPLR 3212(b), an unsworn eyewitness statement is insufficient to raise a triable issue of fact in opposition to summary judgment.

Huang v. "John Doe" · filed 2019-02-27(b)

The unsworn statement of the alleged nonparty eyewitness obtained more than one year after the subject accident did not constitute admissible evidence sufficient to raise a triable issue of fact ( see CPLR 3212[b]; Jacobs v Schleicher , 124 AD2d 785, 786).

Section 3212(b) requires a summary judgment movant to support its motion with admissible evidence or an affidavit from someone with personal knowledge of the facts.

United Specialty Ins. v. Columbia Cas. Co. · filed 2020-08-12(b)

Since CCC failed to submit admissible evidence or an affidavit by a person having knowledge of the facts, it failed to establish its prima facie entitlement to judgment as a matter of law ( see CPLR 3212[b]; Currie v Wilhouski , 93 AD3d at 817-818).

Section 3212(b) requires admissible evidence to support a motion for summary judgment.

Scottsdale Ins. Co. v. RLI Ins. Co. · filed 2021-01-28(b)

Given the absence of admissible evidence to support RLI's claim that it made an unconditional offer to pay the policy limit so as to terminate its obligation to pay postjudgment interest under the terms of the policy, denial of the summary judgment motion was proper ( see CPLR 3212(b); Zuckerman v City of New York , 49 NY2d 557, 562 [1980]).

Section 3212(b) permits a plaintiff to establish a payment default through an affidavit based on personal knowledge or other admissible evidence; a conclusory assertion does not meet the prima facie burden for summary judgment.

Wilmington Sav. Fund Socy., FSB v. McLaughlin · filed 2021-07-28(b)

A plaintiff may establish a default in payment by, inter alia, submitting an affidavit from "a person having [personal] knowledge of the facts" (CPLR 3212[b]) or by submitting other evidence "in admissible form" ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498, 507; see Bank of N.Y. Mellon v Gordon , 171 AD3d 197, 208). ... Thus, the plaintiff failed to meet its prima facie burden by relying on Pope's conclusory assertion that the defendants defaulted in payment, which was not supported by a factual basis ( see id. at 1518; Deutsche Bank Natl. Trust Co. v McGann , 183 AD3d 700, 702).

Section 3212(b) requires a summary judgment motion to include the pleadings, but a notice of claim is not a pleading and need not be attached.

Torres v. New York City Hous. Auth. · filed 2021-11-10(b)

While the defendant correctly contends that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, a notice of claim is not [*2]a pleading ( see Winbush v City of Mount Vernon , 306 NY 327, 334; Kettle v Sweet Home Cent. School Dist. , 152 AD2d 956, 957).

Section 3212(c) permits a trial limited to damages when liability is established but the record does not establish the amount of damages.

Lloyd v. Imperial Auto Collision, Inc. · filed 1986-05-06(c)

There was insufficient proof in the record upon which to ascertain damages and enter judgment without a hearing. Accordingly we have remanded this action for a trial on the issue of damages only.

Section 3212(c) permits summary judgment on liability while leaving the amount of damages for trial.

Koshgarian v. Vics · filed 1985-07-11(c)

It is evident, however, that defendant’s allegations of plaintiff’s negligence and failure to properly charge for work performed do not refute plaintiff’s claim and, thus, cannot stand in the way of plaintiff’s motion for summary judgment. Such allegations do, however, address the extent of damages and it is, therefore, appropriate for a trial to be held to determine this issue (see, CPLR 3212 [c]).

Section 3212(e)(2) permits the court to hold entry of summary judgment in abeyance while a separate counterclaim is decided.

Frank M. Herbert, Inc. v. M & P Scrap Iron & Metal Corp. · filed 1964-02-24(e)(2)

The entry of judgment should be held in abeyance pending the determination of the second counterclaim.

Section 3212(c) permits partial summary judgment while unresolved damages and counsel fees proceed to trial.

Corbetta Construction Co. v. Michigan Mutual Liability Co. · filed 1964-02-27(c)

The order appealed from is, therefore, modified by striking defendant’s three separate defenses and granting summary judgment to the plaintiff to the extent of full policy coverage plus counsel fees, with costs to the plaintiff; and the case is remanded for trial of the issues of damage and counsel fees (CPLR 3212, subd. [c]).

Section 3212(e)(2) permits partial summary judgment while entry of a foreclosure judgment awaits trial of an unresolved claim.

Franklin National Bank v. De Giacomo · filed 1964-03-09(e)(2)

However, inasmuch as there can be only one judgment of foreclosure, the entry of judgment herein should be held in abeyance pending determination of the claim for unpaid interest (CPLR 3212, subd. [e], par. 2).

Section 3212(e)(2) permits a court to defer entry of partial summary judgment until the remaining issues are determined.

Kleartone Transparent Products Co. v. Trent · filed 1964-04-27(e)(2)

Order modified as follows: (1) by reducing the amount for which partial summary judgment was granted to $3,007.80, together with interest thereon; and (2) by directing that entry of judgment therefor be held in abeyance pending determination of the remaining issues in the action (CPLR 3212, subd. [e], par. 2).

Section 3212(e) permits summary judgment on one cause of action and its severance while other claims remain pending.

Trager v. Trager · filed 1964-05-04(e)

Defendant wife has raised no issue requiring a plenary trial of plaintiff’s third cause of action. Accordingly, plaintiff is entitled to summary judgment on said third cause of action, as prayed for in the complaint, and said cause of action is severed from the remaining causes of action. (CPLB 3212, subd. [e].)

Section 3212 permits summary judgment in a summary proceeding when no triable issue of fact remains.

Metropolitan Life Insurance v. Carroll · filed 1964-05-28

The summary judgment device is applicable to summary proceedings.

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

Littlefield-Alger Signal Co. v. County of Nassau · filed 1964-06-03(a)

The plaintiff’s cross motion for summary judgment is denied as premature (CPLR 3212 [a]).

CPLR 3212 permits partial summary judgment on a cause of action when no triable issues remain.

Solomon v. Van De Maele · filed 1964-06-18

Plaintiff, payee of a promissory note for $58,000, appeals from an order denying his motion for partial summary judgment (Rules Civ. Prac., rule 113; CPLR 3212). ... Because the parol evidence rule excludes the contradictory parol proof and the defense of usury is not applicable, there are no triable issues. Hence, plaintiff is entitled to summary judgment on the first cause of action of his complaint.

Section 3212(g) allows a court to resolve controlling legal issues on summary judgment when they do not depend on disputed facts.

Janos v. Peck · filed 1964-07-09(g)

The determination by the court on a summary judgment motion of pivotal and controlling issues of law not tied in with disputed facts will “ aid in the disposition of the action” (see CPLR 3212, subd. [g]).

CPLR 3212 permits summary judgment on the undisputed part of a claim while a remaining damages issue proceeds to trial.

Rochester Development Corp. v. Furfare · filed 1964-11-18

In view of the fact that both parties to the realty sales contract are presently ready, able and willing to perform the terms of the sales contract, plaintiff’s motion for summary judgment is hereby granted to the extent of transferring title and possession of the property in question pursuant to the terms of the sales contract. ... It appearing that the only triable issue of fact has to do with possible damages sustained by either or both of the parties to the sales contract, the said issue is directed to be determined as the result of a trial which is directed to be had without delay. The procedure herein directed is authorized pursuant to the provisions of CPLR 3212.

Section 3212(e)(2) permits summary judgment on one cause of action while entry of judgment is held in abeyance until the remaining issues are decided.

Jemkap, Inc. v. County of Suffolk · filed 1965-01-18(e)(2)

Order modified on the law so as to provide: (1) that plaintiff’s motion for summary judgment is granted against the defendant town and the defendant Crowitz with respect to the first cause of action; and (b) that entry of judgment upon such first cause of action be held in abeyance pending determination of the remaining issues in the action, namely, the issues upon the second cause of action and the cross claims with respect to both causes of action (CPLR 3212, subd. [e], par. 2).

CPLR 3212 permits total or partial summary judgment, as well as severance and limitation of factual issues for trial.

In re Orans · filed 1965-03-15

CPLR 3212, in respect of the procedure for accelerated judgment, permits of total or partial summary judgment and severance and limitation of issues of fact for trial.

Section 3212(e) permits partial summary judgment even if the movant did not request it in the trial court.

Sumitomo Shoji New York, Inc. v. Isbrandtsen Co. · filed 1965-04-29(e)

Nor is it material whether plaintiff-appellant requested partial summary judgment at nisi prius (OPLR 3212, subd. [e]).

Section 3212(c) permits partial summary judgment and a hearing to determine the amount due when that is the only triable issue.

Hill v. Severn · filed 1965-05-06(c)

It is our belief that Special Term was correct in granting partial summary judgment and setting a hearing for the only triable issue, namely, the amount due respondent (CPLR 3212, subd. [c]).

Section 3212(e) authorizes severance of causes of action on which summary judgment has been granted.

A.J. Armstrong Co. v. Lawrence American Field Warehousing Corp. · filed 1965-01-26(e)

Under CPLR 3212 (subd. [e]) the court had ample warrant for this direction to sever the causes of action on which summary judgment had been granted.

Section 3212(e) permits summary judgment on undefended causes of action despite a counterclaim to an unrelated cause of action.

Pease & Elliman, Inc. v. 926 Park Avenue Corp. · filed 1965-06-24(e)

The intent of the statute is to permit partial summary judgment to be granted where it appears to the court that this may be done as to one or more causes of action. There is no prohibition against summary judgment in favor of a plaintiff, where, as here, there is no defense as to certain of the causes of action merely because of the assertion of a counterclaim to another unrelated cause of action.

Section 3212(e) permits partial summary judgment dismissing a severable portion of a complaint that is insufficient.

Tow v. Moore · filed 1965-07-19(e)

On this motion to dismiss the complaint, since the major portion of the cause of action asserted therein' is insufficient and .since such portion is severable from the remaining good portion, summary judgment may properly be granted dismissing the severable portion which we have found to be insufficient (CPLR 5012; CPLR 3211, subd. [c] ; CPLR 3212, subd. [e] ; Melniker v. American Tit. & Guar. Co., 253 App. Div. 570; cf. Demuth v. Griffin, 253 App. Div. 399, 402-403).

Section 3212(e) does not permit separate summary judgment on an item of damages alone.

Bretscher v. Christopher · filed 1966-03-07(e)

This section or at least its predecessor has been interpreted to hold that no separate judgment may be granted as to separate items of damages only. ... Since this is essentially what the defendant is seeking, her motion must be and hereby is denied, without costs.

Section 3212(e) permits partial summary judgment when the opposing party raises no triable issue of fact.

In re the Estate of Crichton · filed 1966-03-09(e)

She raises no triable issue of fact, but relies on Louisiana law and submits that this question should be decided by the Louisiana court in the ancillary proceedings there. ... The motion by Mrs. McGehee, the testator’s daughter of his first marriage, for partial summary judgment is granted.

Section 3212(e) permits a court to dispose of part of a cause of action on summary judgment while leaving the balance in place.

Firester v. Lipson · filed 1966-04-04(e)

Accordingly the afore-mentioned allegations of plaintiffs’ first cause of action alleged in plaintiffs’ complaint will be stricken with leave to plaintiffs to replead if they be so advised and the motion for summary judgment will be denied as to the balance of said cause of action (CPLR 3212, subd. [e]).

Section 3212(c) allows the court to assess damages after granting summary judgment, with a referee hearing the evidence and reporting to the court.

Burlington Industries, Inc. v. Eastern Express, Inc. · filed 1965-05-20(c)

In these circumstances, and as no issue is discernible to the resolution of which a jury can constructively contribute, determination of damages by the court, with the assistance of a Referee to hear and report, appears the advisable procedure (CPLR 3212, subd. [c]; 4311; Livingston v. Blumenthal, 248 App. Div. 138; Alexander’s Dept. Stores v. Ohrbach’s, 269 App. Div. 321, 325; but cf. Frank v. Wolfe, 166 Mise. 415; 4 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 3212.07).

Section 3212(c) permits unresolved damages issues to be decided at an inquest after summary judgment.

Clayton v. Sindeband · filed 1965-07-06(c)

The issues presented respecting the damages recoverable by plaintiffs from the corporate defendant may be resolved at the inquest (CPLR 3212, subd. [c]).

Section 3212(g) permits a court to preserve disputed factual issues for trial when it denies summary judgment.

Board of Education of Union Free School District No. 10 v. Pennsylvania Insurance · filed 1966-02-28(g)

That being the case, this ... issue shall be one preserved for trial, together with that having to do with the time plaintiff received defendant’s notice of withdrawal and mailed its own acceptance (in the event the architect’s authority is demonstrated). (CPLR 3212, subd. [g].) The motion is denied.

Section 3212(c) permits a court to grant summary judgment and remit the case for an assessment of damages.

Rao v. Noferi · filed 1966-03-24(c)

The order should be reversed, with $10 costs, motion for summary judgment granted and case remitted to the court below for an assessment of plaintiffs’ damages under CPLR 3212 (subd. [c]).

Section 3212(e)(2) permits summary judgment on an undisputed claim while entry of judgment is held in abeyance pending determination of a counterclaim.

Romick's International, Inc. v. Interstate Cigar Co. · filed 1966-04-01(e)(2)

The entry of judgment shall, however, be held in abeyance in accordance with the provisions of CPLR 3212 (subd. [e], par. 2), pending the determination of such counterclaim as may be interposed herein by the defendant by way of an amended answer for damages claimed to have been sustained as a result of the defamation asserted in the answering affidavits.

A dispute over the amount of damages does not bar summary judgment; the court may determine damages afterward.

John F. Welgan, Inc. v. Government Employees Insurance · filed 1966-04-08(c)

Thus, by the denials, the answer puts in issue only the material question of damages. By CPLB 3212 (subd. [c]), “ The existence of a triable issue of fact as to the amount or the extent of the damages shall not bar the granting of summary judgment and it is unnecessary to consider further the denials alleged in the answer for a determination of this motion.

Section 3212(e) permits summary judgment on liability when no triable issue of fact remains, with damages assessed afterward.

J. P. Lieberman & Son, Inc. v. Samuel Schlosberg, Inc. · filed 1966-04-11(e)

Order reversed, with $10 costs and disbursements; plaintiff’s motion granted; and action remitted to the court below for the purpose of determining and assessing the damages and for the entry of an appropriate judgment in plaintiff’s favor. In our opinion, the motion papers raise no triable issue of fact sufficient to preclude granting of the motion.

Section 3212(c) permits summary judgment while leaving the amount of damages for trial.

Joseph Davis, Inc. v. Merritt-Chapman & Scott Corp. · filed 1967-01-12(c)

Applying these principles to the prime and subcontract requires a reversal of that part of Special Term’s order which denied the plaintiff summary judgment on the first and second causes of action, except for the question of damages, and the case must be remitted to Special Term for a trial only on the issue of the amount of damages (CPLR 3212, subd. [c]).

Section 3212 permits partial summary judgment for an admitted amount when there is no triable issue of fact as to that amount.

Green v. Hempstead Bank · filed 1967-01-26

Order entered July 11, 1966, herein appealed from, unanimously modified on the law to grant partial summary judgment to appellant in the amount of $1,140.80 and as so modified is otherwise affirmed, with $50 costs and disbursements to respondent. ... To that extent there is no triable issue of fact (CPLR 3212).

Section 3212 permits partial summary judgment for established rent overcharges while claims for counsel fees and additional damages proceed to trial.

Johnson v. 323 East 9th Corp. · filed 1967-03-10

(2) To enter partial summary judgment immediately for $489.31 (actual overcharges) without interest. Upon the entry of such judgment costs will be taxable (CCA, § 1903, subd. [b]) and the action will be deemed severed so that it may proceed to trial with respect to all other questions, such as counsel fees and treble or other liquidated damages.

Section 3212(e)(2) permits entry of judgment on a claim resolved by summary judgment to be held in abeyance while a counterclaim remains pending.

Tomkins Lakes Estates Ass'n v. Speisman · filed 1966-07-06(e)(2)

The entry of judgment in plaintiffs’ favor should be held in abeyance pending the determination of the counterclaim (CPLR 3212, subd. [e], par. 2; Nopco Chem. Co. v. Milner, 12 A D 2d 942; Gallagher Switchboard Corp. v. Heckler Elec. Co., 34 Misc 2d 256; Frank M. Herbert, Inc. v. M & P Scrap Iron & Metal Corp., 41 Misc 2d 1020).

Section 3212(c) does not permit summary judgment when an unresolved factual issue determines whether punitive damages may be awarded at all.

Cooper v. Mallory · filed 1966-10-10(c)

Although summary judgment might be warranted as to compensatory damages the prayer for punitive damages has left open an isolated factual issue which interferes with otherwise available summary disposition. It is our opinion that this is not an appropriate time to apply the first sentence of CPLK, 3212 (subd. [c]) which removes issues of amount or extent of damages as bars to summary judgment.

Section 3212(c) permits the court to grant summary judgment and direct a hearing to fix the amount of the judgment.

National Factors, Inc. v. Winslow · filed 1966-10-28(c)

Accordingly, the motion will be granted, but the amount of the judgment must be fixed at a hearing, which hearing is directed, pursuant to CPLR 3212 (subd. [c]).

Section 3212(g) permits a court to identify the factual issues remaining for trial when it grants only part of a summary judgment motion.

Hering v. Town of Canandaigua · filed 1966-11-29(g)

The motion is, therefore, granted to the extent of declaring that the only issues of fact remaining in the case are (1) does the document of January 3, 1806, relied upon by the defendant, purport to describe what is now McCann Road; (2) if so, does the course described in said document fall within the area of McCann Road as now existing; (3) if so, what damages, if any, should be awarded to the defendant movant against the plaintiffs. (See CPLR 3212, subd. [g].)

Section 3212(g) permits a court to establish the undisputed portion of a claim even when it denies full summary judgment.

General Bronze Corp. v. North American Van Lines, Inc. · filed 1967-12-05(g)

Order, entered February 1, 1967, denying summary judgment unanimously modified, on the law, to the extent of finding, pursuant to CPLR 3212 (subd. [g]) that plaintiff is entitled to recover a minimum of 30 cents a pound, and otherwise affirmed, without costs and without disbursements.

Section 3212(e) permits partial summary judgment despite larger remaining counterclaims unless the counterclaims are so inseparable from the claims decided that entry of judgment should be withheld.

Dalminter, Inc. v. Dalmine · filed 1968-03-12(e)

It is quite apparent that under CPLR 3212 (subd. [e]) the court in the proper exercise of discretion may enter partial summary judgment although there exist remaining counterclaims to be tried which are in excess of the claims upon which summary judgment is granted ... unless the counterclaims are so inseparable from plaintiffs’ causes of action that entry of judgment should be withheld.

Section 3212(e)(2) permits entry of judgment on a counterclaim to be held in abeyance pending determination of the rest of the action.

Industrial Credit Co. v. J. A. D. Construction Corp. · filed 1968-04-08(e)(2)

Such assessment should take place, but the entry of judgment thereon should be held in abeyance pending determination of plaintiff’s cause of action (CPLR 3212, subd. [e], par. 2).

Section 3212(c) permits summary judgment on liability while leaving damages for later assessment.

Schembri v. Burke · filed 1968-09-05(c)

The motion, therefore, is granted, with respect to the issue of liability. An assessment of damages shall be held at a Trial Term of this court, on October 14, 1968, subject to the Justice presiding (CPLR 3212, subd. [c]).

CPLR 3212(e) permits partial summary judgment when no factual issue remains as to part of the relief sought, even though the rest must be tried.

Veer v. Continental Casualty Co. · filed 1968-11-04(e)

Upon this phase of the litigation, there being an absence of any issues of fact to be determined, plaintiff is entitled to partial summary judgment in the amount of $500 per month from the date of his total disablement to the date action was commenced, without prejudice to a further recovery under Plan “ A ” upon trial of the action.

Section 3212(g) permits a court denying summary judgment to establish facts for trial and limit the trial to unresolved issues.

Quick v. O'Connell · filed 1967-06-21(g)

Although summary judgment must be denied, the plaintiff is entitled to an order that the negligence of each defendant, and that it was a proximate cause of the accident herein, is incontrovertible and that the issues of fact for the trial must be limited to the contributory negligence of the plaintiff’s decedent and damages.

Section 3212(c) permits summary judgment even when the amount or extent of damages remains to be tried.

Yancy v. Gambee · filed 1967-09-21(c)

This undoubtedly was the motivation behind the enactment of CPLR 3212 (subd. [c], formerly Rules Civ. Prac., rule 113) which in seemingly clear language states that “ The existence of a triable issue of fact as to the amount or the extent of the damages shall not bar the granting of summary judgment ”. ... The court finds that no real genuine issue exists. Motion is granted. Case is set.down for assessment of damages on October 30, 1967.

Section 3212 permits partial summary judgment on issues with no remaining factual dispute while leaving issues with triable factual disputes unresolved.

Iannarone v. Caso · filed 1969-02-18(e), (g)

Pursuant to CPLR 3212 (subds. [e], [g]) this court finds that Besolution 1012-68 of the Hempstead Town Board, acting on the rezoning application, required and received a majority vote of the Town Board upon adequate notice and hearing. This court further finds that a factual question exists as to whether the rezoning in question was in accordance with a comprehensive plan. Accordingly, partial summary judgment is awarded to the defendant Control Corporation to the extent that no issue remains as to the number of votes required on the Town Board and the requirement of further notice of hearing. However, since a triable issue of fact remains as to whether the rezoning action was done in compliance with a comprehensive plan, summary judgment is denied to the defendant Control Corporation as to this part.

Section 3212(e) permits a court to enter partial summary judgment even when a larger counterclaim remains to be tried.

Petikas v. Atco Marine Corp. · filed 1969-03-04(e)

Under CPLR 3212 (subd. [e]) ... the court in the proper exercise of its discretion may enter partial summary judgment in plaintiff’s favor although there exists a remaining counterclaim to be .tried which is in excess of plaintiff’s claim.

Section 3212(e) permits summary judgment on part of a cause of action.

Amaducci v. Metropolitan Opera Ass'n · filed 1969-10-16(e)

Therefore, the court can, pursuant to CPLR 3211, subd. [c], treat the motion as one for summary judgment and, under CPLR 3212, subd. [e], summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties. Consequently, defendant’s motion will be considered as one for partial summary judgment dismissing that part of plaintiff’s claim represented by plaintiff's allegations in paragraphs Tenth, Eleventh, Twelfth and Thirteenth of the amended complaint, and defendant’s motion will be granted to the extent of dismissing those claims.

CPLR 3212(b) bars partial summary judgment on a defendant’s negligence when the plaintiff’s contributory negligence remains a factual issue in a personal injury action.

Enker v. Slattery Construction Co. · filed 1970-04-20(b)

Moreover, we find that the partial summary judgment sought by plairitiff could not have been' granted for the additional reason that CPLR 3212 (subd. [b]) provides: “The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages ”. Here, plaintiff concedes there is an issue of fact as to her contributory negligence.

Section 3212(c) permits a court to grant summary judgment and set damages for assessment.

Fischl v. Fischl · filed 1969-02-05(c)

The defendant’s motion for summary judgment is denied. The plaintiff’s motion for summary judgment is granted to the extent of setting an assessment of damages down pursuant to CPLR 3212 (subd. [c]).

Section 3212 permits the court to grant summary judgment while ordering an assessment of damages that remain to be determined.

Foley Machinery Co. v. John T. Brady Co. · filed 1970-04-30(c)

Settle order which, in addition to the foregoing disposition, shall provide for an assessment of plaintiff’s damages for defendant’s detention of the traxcavator.

CPLR 3212(c) permits an assessment of damages when summary judgment resolves liability but the amount due remains disputed.

Security National Bank v. De Joy · filed 1970-05-25(c)

Order reversed, on the law, with $10 costs and disbursements; motion granted; and action remitted for assessment of damages before the trial court without a jury, at a Trial Term, in accordance with CPLR 3212 (subd. [c]). ... A triable issue of fact is presented as to the amount due. Therefore, an assessment of damages is required.

CPLR 3212(e) permits an assessment to be deferred to trial when determining the amount requires extensive testimony overlapping unresolved issues.

Nigro v. Celestial Music Corp. · filed 1970-02-05(e)

Plaintiff may be correct that this merely involves an assessment and such should have been ordered (CPLR 3212, subd. [e]). However, for pragmatic reasons an assessment at this time would be an undue burden upon both the court and the litigants. The determination of the amount, if any, recoverable by plaintiff is not a matter of calculation but will require a full trial involving testimony which to a considerable extent will parallel testimony on issues not resolved by summary judgment and remaining in the case. It will be simpler and more efficacious to resolve all these issues on the trial. For this reason the failure to order an assessment is not disturbed.

Section 3212 permits a court to establish facts for purposes of the action while leaving unresolved issues, including damages, for trial.

Siegel v. Kranis · filed 1970-06-15

Order modified, (1) by inserting in the first decretal paragraph thereof, immediately after the provision that the motion is “granted”, the following: “to the extent set forth below”; (2) by inserting the following immediately after the first decretal paragraph thereof: “ ordered that the following facts shall be deemed established for all purposes in the action: ...; and it is further”; and (3) by striking from the second decretal paragraph thereof everything from “ that an assessment” to “the Justice presiding ”, inclusive, and substituting therefor the following: “ the ease shall proceed to trial upon all the remaining issues, including damages, on the earliest available date ”.

Section 3212(e) permits partial summary judgment on an issue while disputed factual issues remain for trial.

Slevin v. Long Island Jewish Medical Center · filed 1971-04-06(e)

Partial summary judgment will be granted to the defendants to the extent that the drug center use will be deemed a religious use within the Building Zone Ordinance of the Town of North Hempstead.

Section 3212(e) permits partial summary judgment on counterclaims when no litigable issue remains as to those claims.

Pitkin Furniture Co. v. Jackson · filed 1972-02-01(e)

Therefore, under the fact patterns of the case at bar, it is clear to this court that the defendant’s motion for summary judgment should be granted, because there are no litigable issues raised by plaintiff’s affirmation to the defendant’s motion, giving said affirmation the broadest possible interpretation. Defendant’s motion is granted only to the extent of awarding partial summary judgment awarding $100 on the first counterclaim and $100 on the second counterclaim.

Section 3212(e) permits a court to hold entry of partial summary judgment in abeyance while remaining issues are tried.

Berley Industries, Inc. v. Bristol Apartments Corp. · filed 1972-02-22(e)

(c) that entry of judgment for said $30,000 and interest shall be held in abeyance, pursuant to CPLR 3212 (subd. [e]), pending determination of the issues herein directed to be tried.

Section 3212(c) permits summary judgment despite a triable issue about the amount of damages, which the court may assess separately.

Lischer v. Halsey-Reid Equipment, Inc. · filed 1970-07-28(c)

The court may assess the amount, then direct an appropriate summary judgment. ... Summary judgment is granted to petitioner against respondent for the accrued installments that respondent failed to pay the Sheriff pursuant to petitioner’s income execution. The court shall assess said amount with interest, then direct an appropriate summary judgment after a hearing thereon instituted by petitioner.

Section 3212(c) permits summary judgment followed by an assessment of damages when the amount of damages remains disputed.

Dittman v. Martin P. Andrews Inc. · filed 1971-10-28(c)

Under CPLR 3212-(subd. [c]) the existence of a triable issue of fact as to the amount of damages does not bar the granting of summary judgment, but .permits the court to order an assessment of damages after a hearing before a Referee, .the court or the court and a jury.

Section 3212 permits summary judgment on established support arrears while leaving relief whose availability is uncertain for trial.

Lottridge v. Lottridge · filed 1973-04-04

However, it would be premature to award summary judgment at this time, particularly because the pending foreclosure proceedings might make such relief illusory. The final determination would be best left for trial for the purpose of determining if specific performance is still available and, if not, what alternative remedy would protect the interests of the plaintiff. For all of the above reasons, summary judgment, except for the amount of the arrearages for support payments, is denied.

Section 3212(e) permits partial summary judgment on claims that can be resolved while the remaining claims await trial or other disposition.

Kesco Textile Co. v. Coit International, Inc. · filed 1973-04-23(e)

Order, Supreme Court, New York County, entered January 15, 1973, unanimously modified, on the law, to grant partial summary judgment to plaintiff in the amounts of $3,322.97 and $10,116, with interest thereon to be calculated from the due dates (CPLR 3212, subd. [e]), and the remaining claim and counterclaim with respect to the balance of the goods severed to await trial or other disposition by the parties.

CPLR 3212(c) permits summary judgment on liability with an assessment of damages when only damages remain in dispute.

Society of New York Hospital v. Tyszkiewicz · filed 1973-06-04(c)

Consequently, on the facts herein, summary judgment should have been granted in favor of plaintiff on the issue of liability and an immediate assessment of damages should have been ordered (see CPLR 3212, subd. [c]).

Section 3212(c) permits summary judgment on liability while leaving disputed damages for assessment.

Itoh v. Kimi Sales, Ltd. · filed 1973-06-19(c)

Since all of the items of damage to which plaintiff may be entitled involve triable issues of fact, the court, while granting plaintiff’s motion for summary judgment against Kimi, directs that there be an assessment of damages after which judgment shall be entered in favor of plaintiff against defendant for the amount of damages determined upon such assessment.

Section 3212(c) does not warrant summary judgment followed by an assessment when causation remains unproved and the assessment would require the same evidence as a full hearing.

3 E. 52nd St. Corp. v. Uris Fifth Avenue Corp. · filed 1972-03-16(c)

Moreover, summary judgment is an inappropriate remedy in the circumstances of this case. An assessment must be held in any event and at the assessment, the amount of damages as well as causation must be proven. Thus, the evidence required on an assessment would be identical with the proof necessary at a plenary hearing and hence, no purpose is served in granting summary judgment.

Section 3212(c) does not warrant summary judgment when assessing damages would require substantially the same proof as a trial.

Society of New York Hospital v. Tyszkiewicz · filed 1972-06-28(c)

It is apparent that hospital bills must be proved and, except in rare instances, judgment may not be entered on them, by default or by summary judgment without an assessment.

Section 3212(c) permits summary judgment when only the amount of damages remains to be determined, subject to an assessment of damages.

Liberty Industrial Park Corp. v. Protective Packaging Corp. · filed 1972-08-10(c)

The only viable issue of fact presented is the amount of plaintiff’s damages. This does not bar the granting of summary judgment subject to assessment of damages (CPLR 3212, subd. [c]).

Section 3212(c) permits judgment on liability while a disputed amount of damages is determined at a hearing.

Landis Machine Co. v. Hydronic Fabrications, Inc. · filed 1973-02-01(c)

Under the circumstances," there must be an assessment of the amount or the extent of damages. (CPLR 3212, subd, [c].)

Section 3212(e) provides for partial summary judgment when issues remain to be resolved.

Sullivan County Harness Racing Ass'n v. City of Schenectady Off-Track Betting Commission · filed 1973-11-27(e)

To the extent that this decision holds that the subject contract survives under the conditions recited above and since this relief is less than requested, the court would be constrained to grant partial summary judgment (CPLR 3212, subd. [e]). However, since partial summary judgment implies there are remaining issues and since all parties agree there are no questions of fact requiring severance, the court declares the rights of the parties to be as determined above, ... and the court directs that judgment be entered accordingly.

Section 3212(c) permits an assessment of damages after summary judgment establishes liability.

Coates v. City of New York · filed 1974-01-25(c)

Settle order and provide therein for an assessment of damages in- accordance with this opinion pursuant to CPLR 3212 (subd. [c]) before the Trial Term upon compliance with the applicable calendar rules and payment of all required fees.

Section 3212 permits partial summary judgment on a declaratory judgment claim when factual disputes concern only a separate claim and are immaterial to the legal issue presented.

Jones v. Banner Moving & Storage, Inc. · filed 1974-08-12

The questions of fact as to the authority to create a bailment and the validity of the alleged lien are material only to plaintiff’s cause of action for replevin. However, plaintiff here does not move for summary judgment in the replevin action. Had she done :so, the questions of fact presented would necessarily defeat such a motion. Plaintiff does move for summary judgment on her cause of action for a declaratory judgment. The questions of fact are immaterial to the issue of law raised on that motion, namely, are the detention and sale provisions of the Uniform Commercial Code constitutional?

Section 3212(e) permits summary judgment on liability while leaving damages for a full adversary trial.

Lieberman v. Larkin · filed 1974-09-23(e)

We agree that summary judgment was properly granted as to the question of liability only. We do not pass upon the question of damages, which should be decided only after a full adversary trial and not an inquest (CPLR 3212, subd. [e]).

Section 3212(e) permits partial summary judgment and severance of the part of the case resolved by that judgment.

Screen Gems-Columbia Music, Inc. v. Hansen Publications, Inc. · filed 1974-12-18(e)

The granting of partial summary judgment, and the severance of so much of the case in which summary judgment was granted, was well within the discretion of the Appellate Division (CPLR 3212, subd. [e]).

Section 3212 permits a court to grant summary judgment in part while leaving unresolved issues for further proceedings.

Hunt v. Marine Midland Bank Central · filed 1974-12-26

Accordingly, it is the decision of this court that defendants’ motions for summary judgment dismissing plaintiff’s complaint he granted in part and denied only as to the issues of plaintiff’s alleged loss of personal property contained in the automobile and the determination of Heritage’s counterclaim for storage cost.

Section 3212(g) does not permit issues to be treated as established when interrelated facts remain disputed.

Orensky v. Faim Information Services, Inc. · filed 1974-02-19(g)

In our opinion, the subject matter of this action, to wit, the agreement under which each party claims and counterclaims, presents interrelated and disputed issues of fact not properly resolvable under CPLR 3212 (subd. [g]).

Section 3212(e)(2) permits a court to stay a summary judgment award while a remaining claim is tried, so the funds remain available if that claim succeeds.

Sunshine v. Bankers Trust Co. · filed 1974-06-19(e)(2)

Her award, however, should be stayed pursuant to CPLR 3212 (subd. [e], ... par. 2) to make certain the money is still extant and collectible should the Bank later prevail on the subrogation issue.

Section 3212(e) permits partial summary judgment even when an accounting remains to be completed.

Price v. Hoyle · filed 1975-05-13(e)

Accordingly, partial summary judgment in favor of the plaintiff is granted. ... The defendants shall account for all personal property of the plaintiff removed from her former dwelling place.

CPLR 3212(e) permits partial summary judgment for an undisputed amount while an accounting determines whether more is owed.

Scher v. Apt · filed 1975-06-09(e)

In the interim, there being no dispute as to the $20,096, and plaintiff having indicated his willingness to accept an offset of $4,670 in order to cover defendants’ counterclaim, there exists no impediment to the award of partial summary judgment to him in the amount of the difference (CPLR 3212, subd [e]; see Fleder v Itkin, 294 NY 77, 84; Sheehan v Cone Gen. Adv. Agency, 176 Misc 882, 884; Apfelbaum v Gross, 117 Misc 140, affd 200 App Div 914).

Section 3212(c) permits partial summary judgment and an immediate trial when only the amount of damages remains disputed.

Williams Press, Inc. v. Kable News Co. · filed 1975-11-13(c)

Therefore, the motion for summary judgment is granted in part and an immediate trial is ordered to assess the amount of damages due the plaintiff pursuant to CPLR 3212 (subd [c]).

Section 3212(e)(2) permits a court to hold entry of summary judgment on one cause of action in abeyance while another cause of action is resolved.

New York Telephone Co. v. Town of North Hempstead · filed 1975-11-14(e)(2)

CPLR 3212 (subd [e], par 2) authorizes the court to direct that the entry of summary judgment as to a particular cause of action be held in abeyance pending the determination of any remaining cause of action. With that provision in mind, the court grants summary judgment in favor of the plaintiff against the defendants on the second cause of action upon the ground that there are no triable issues of fact but directs that the entry of judgment shall be held in abeyance pending the determination to be made in respect of the first cause of action and for that purpose further directs that the second cause of action be severed from the first cause of action.

Section 3212(c) permits summary judgment on liability when the amount of damages remains for trial.

Jones & Laughlin Steel Corp. v. Excel Steel & Strip Co. · filed 1976-03-29(c)

Order modified, on the law, by deleting the word "denied” from the decretal paragraph thereof, and substituting therefor the following: "granted to the extent that plaintiff is awarded summary judgment on its first cause of action as to the issue of liability and the motion is otherwise denied.” As so modified, order affirmed, with one bill of $50 costs and disbursements, and action remanded to the Supreme Court for an immediate trial as to the issue of damages. ... The only question remaining is the actual amount owing (cf. CPLR 3212, subd [c]).

Section 3212(e)(1) permits summary judgment on a complaint while a counterclaim presenting factual questions is severed.

Liberty National Bank & Trust Co. v. Rice · filed 1976-07-12(e)(1)

If there are questions of fact presented on this motion, they relate only to defendant’s counterclaim, for we find no question of fact concerning plaintiff’s complaint. ... Accordingly, the order is modified to grant plaintiff’s motion for summary judgment against defendant on the complaint, and the counterclaim is severed (CPLR 3212, subd [e], par 1).

Section 3212(e) permits severing one cause of action when summary judgment is granted on another.

Tuttle v. Juanis · filed 1976-09-27(e)

Special Term properly severed the second cause of action (see CPLR 3212, subd [e]).

Section 3212(e) permits partial summary judgment declaring mortgage priority while leaving the validity and enforceability of the liens for trial.

Sackman-Gilliland Corp. v. Lupo · filed 1977-01-14(e)

In granting partial summary judgment, Special Term determined that the mortgages were subject to the mechanic’s liens of defendants-respondents "to the extent that the said liens are proven valid and enforceable by a trial on the merits”. Such a determination was proper in the circumstances (CPLR 3212, subd [e]).