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Under NY Real Property Actions and Proceedings Code 711, the landlord may pursue eviction for non-payment of rent. See: http://codes.lp.findlaw.com/nycode/RPA/7/711
NY CPLR 3212 allows a party to seek summary judgment
. 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. If no such date is set by the court, such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. See: Alvarez v Prospect Hospital, 68 NY2d 320, 324  and Zuckerman v City of New York, 49 NY2d 557, 562 . The Court's function when determining a motion for summary judgment is issue finding not issue determination. See: Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 .
The courts hold that because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. See: Rotuba Extruders v Ceppos, 46 NY2d 223, 231 . When the existence of an issue of fact is even debatable, summary judgment should be denied. See: Stone v Goodson, 8 NY2d 8, 12 .