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This entry was published on 2015-12-18
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SECTION 3212
Motion for summary judgment
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 32
Rule 3212. Motion for summary judgment. (a) Time; kind of action. Any
party may move for summary judgment in any action, after issue has been
joined; provided however, that the court may set a date after which no
such motion may be made, such date being no earlier than thirty days
after the filing of the note of issue. If no such date is set by the
court, such motion shall be made no later than one hundred twenty days
after the filing of the note of issue, except with leave of court on
good cause shown.

(b) Supporting proof; grounds; relief to either party. 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. The affidavit shall be by a person having knowledge of the
facts; it shall recite all the material facts; and it shall show that
there is no defense to the cause of action or that the cause of action
or defense has no merit. Where an expert affidavit is submitted in
support of, or opposition to, a motion for summary judgment, the court
shall not decline to consider the affidavit because an expert exchange
pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of
section 3101 was not furnished prior to the submission of the affidavit.
The motion shall be granted if, upon all the papers and proof submitted,
the cause of action or defense shall be established sufficiently to
warrant the court as a matter of law in directing judgment in favor of
any party. Except as provided in subdivision (c) of this rule the motion
shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than
the moving party is entitled to a summary judgment, the court may grant
such judgment without the necessity of a cross-motion.

(c) Immediate trial. If it appears that the only triable issues of
fact arising on a motion for summary judgment relate to the amount or
extent of damages, or if the motion is based on any of the grounds
enumerated in subdivision (a) or (b) of rule 3211, the court may, when
appropriate for the expeditious disposition of the controversy, order an
immediate trial of such issues of fact raised by the motion, before a
referee, before the court, or before the court and a jury, whichever may
be proper.

(e) Partial summary judgment; severance. In a matrimonial action
summary judgment may not be granted in favor of the non-moving party. In
any other action summary judgment may be granted as to one or more
causes of action, or part thereof, in favor of any one or more parties,
to the extent warranted, on such terms as may be just. The court may
also direct:

1. that the cause of action as to which summary judgment is granted
shall be severed from any remaining cause of action; or

2. that the entry of the summary judgment shall be held in abeyance
pending the determination of any remaining cause of action.

(f) Facts unavailable to opposing party. Should it appear from
affidavits submitted in opposition to the motion that facts essential to
justify opposition may exist but cannot then be stated, the court may
deny the motion or may order a continuance to permit affidavits to be
obtained or disclosure to be had and may make such other order as may be
just.

(g) Limitation of issues of fact for trial. If a motion for summary
judgment is denied or is granted in part, the court, by examining the
papers before it and, in the discretion of the court, by interrogating
counsel, shall, if practicable, ascertain what facts are not in dispute
or are incontrovertible. It shall thereupon make an order specifying
such facts and they shall be deemed established for all purposes in the
action. The court may make any order as may aid in the disposition of
the action.

(h) Standards for summary judgment in certain cases involving public
petition and participation. A motion for summary judgment, in which the
moving party has demonstrated that the action, claim, cross claim or
counterclaim subject to the motion is an action involving public
petition and participation, as defined in paragraph (a) of subdivision
one of section seventy-six-a of the civil rights law, shall be granted
unless the party responding to the motion demonstrates that the action,
claim, cross claim or counterclaim has a substantial basis in fact and
law or is supported by a substantial argument for an extension,
modification or reversal of existing law. The court shall grant
preference in the hearing of such motion.

(i) Standards for summary judgment in certain cases involving licensed
architects, engineers, land surveyors or landscape architects. A motion
for summary judgment, in which the moving party has demonstrated that
the action, claim, cross claim or counterclaim subject to the motion is
an action in which a notice of claim must be served on a licensed
architect, engineer, land surveyor or landscape architect pursuant to
the provisions of subdivision one of section two hundred fourteen of
this chapter, shall be granted unless the party responding to the motion
demonstrates that a substantial basis in fact and in law exists to
believe that the performance, conduct or omission complained of such
licensed architect, engineer, land surveyor or landscape architect or
such firm as set forth in the notice of claim was negligent and that
such performance, conduct or omission was a proximate cause of personal
injury, wrongful death or property damage complained of by the claimant
or is supported by a substantial argument for an extension, modification
or reversal of existing law. The court shall grant a preference in the
hearing of such motion.