You are here: / / Defendant Cannot Meet Its Burden In a Summary Judgment Motion Solely by...
,

Defendant Cannot Meet Its Burden In a Summary Judgment Motion Solely by Pointing to Proof Problems in the Plaintiff’s Case/Court, Pursuant to Its Power to Search the Record in Determining a Summary Judgment Motion, Cannot Address Claims that Were Not the Subject of the Motion

In a private nuisance action, the Third Department noted that a defendant cannot prevail on a summary judgment motion solely by arguing gaps or proof problems in the plaintiff’s case and the court cannot “search the record” to dismiss claims that were not the subject of the summary judgment motion:

In support of their motions for summary judgment, defendants did nothing more than argue that plaintiffs failed to plead — and ultimately will be unable to prove — compensable damages and, therefore, dismissal of plaintiffs’ first and second causes of action sounding in private nuisance and trespass was warranted. Even assuming, without deciding, that defendants’ assessment of plaintiffs’ pleadings and examination before trial testimony is accurate, the case law makes clear that the moving party must affirmatively demonstrate its entitlement to summary judgment “and does not meet its burden [in this regard merely] by noting gaps in its opponent’s proof” … . * * *

…Although CPLR 3212 (b) — cited by Supreme Court here — indeed permits a court to search the record and grant summary judgment to a nonmoving party, Supreme Court’s authority in this regard extends “only . . . to a cause of action or issue that is the subject of the motions before the court” … . Stated another way, “[a] motion for summary judgment addressed to one claim or defense does not provide a basis for the court to search the record to grant summary judgment on an unrelated claim or defense” … . Schillaci v Sarris, 2014 NY Slip Op 08072, 3rd Dept 11-20-14

 

You might also like
No Appeal Lies from an Ex Parte, Sua Sponte, Judgment/Order
AN UNPAID PENALTY ASSESSED FOR DEFENDANT’S FAILURE TO MAINTAIN WORKERS’ COMPENSATION COVERAGE WAS ENTERED AS A SUPREME COURT JUDGMENT BY THE COUNTY CLERK IN ACCORDANCE WITH THE WORKERS’ COMPENSATION LAW; BY THE TERMS OF THE STATUTE, SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND DEFENDANT COULD NOT MOVE TO VACATE THE DEFAULT JUDGMENT (THIRD DEPT).
ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS.
POSSESSION OF SYNTHETIC CANNABINOIDS IS PUNISHABLE BY A FINE AND JAIL TIME UNDER THE SANITARY CODE; THEREFORE A SEARCH WARRANT AUTHORIZING A SEARCH FOR SYNTHETIC CANNABINOIDS IS VALID; THE WAIVER OF APPEAL HERE WAS INVALID (THIRD DEPT).
EXTRAORDINARY CIRCUMSTANCES WARRANTED AWARDING CUSTODY TO STEPMOTHER WITH VISITATION BY BOTH PARENTS (THIRD DEPT).
DEFENDANT’S FOR CAUSE CHALLENGE TO A JUROR IN THIS ARSON AND ANIMAL TORTURE CASE SHOULD HAVE BEEN GRANTED; THE JUROR EXPRESSED A HIGHLY EMOTIONAL RESPONSE TO INJURY TO ANIMALS AND THE COURT NEVER SPECIFICALLY ASKED IF SHOULD COULD BE FAIR AND IMPARTIAL (THIRD DEPT).
THE NEW YORK STATE AND LOCAL RETIRMENT SYSTEM DID NOT REBUT THE “WORLD TRADE CENTER PRESUMPTION” THAT PETITIONER’S DEPRESSION WAS AGGRAVATED BY HIS EXPERIENCES ON 9-11; PETITIONER POLICE OFFICER WAS THEREFORE ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).
CONSTRUCTION CONTRACT PROVISION MAKING LITIGATION THE SOLE METHOD FOR RESOLVING A DISPUTE RENDERED VOID BY GENERAL BUSINESS LAW. 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Pursuant to the NYC Administrative Code, Abutting Property Owners Are Not Responsible... Defendant Not Given Adequate Time to Decide Whether to Testify Before the Grand...