Aldridge v. Rumsey

275 A.D.2d 897, 713 N.Y.S.2d 393, 2000 N.Y. App. Div. LEXIS 9615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2000
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiffs motion for partial summary judgment with respect to defendant’s liability in this negligence action. We reject the contention of defendant that the motion was premature because he had not conducted discovery of plaintiff and eight nonparty witnesses. Plaintiffs motion sought summary relief only with respect to defendant’s conduct, and the facts essential to oppose that motion were completely within defendant’s knowledge (see, CPLR 3212 [f¡). Moreover, defendant offered no explanation for his failure to investigate the facts or conduct discovery of nonparty witnesses for more than two years after commencement of the action (see, State of New York v County of Erie, 265 AD2d 853). Contrary to the further contention of defendant, he failed to raise a triable issue of fact with respect to the applicability of the emergency doctrine. The affirmation of defendant’s attorney, who lacked first-hand knowledge of the facts relevant to the applicability of the doctrine, is insufficient to raise a triable issue of fact to defeat plaintiffs motion (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Balio, JJ.