Bartell v. Mazzafero

Appellate Division of the Supreme Court of New York

Bartell v. Mazzafero

5 A.D.3d 618, 774 N.Y.S.2d 783

Appellate Division of the Supreme Court of the State of New York·Decided March 22, 2004·Published·Cited by 1 cases

Opinion

In an action to recover damages for personal injuries, etc., the defendant Rocky & Joe Construction Corp. appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 31, 2003, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

In opposition to the appellant setting forth a sufficient basis for summary judgment, the respondents separately showed that they had not yet had an adequate opportunity to conduct discovery and that facts essential to justify opposition to the [619]*619motion may exist but are exclusively within the knowledge of the appellant (see CPLR 3212 [f]; Mazzola v Kelly, 291 AD2d 535 [2002]; Santiago v John J. Lease Realtors, 304 AD2d 743 [2003]). Accordingly, the appellant is not entitled to summary judgment at this time. Florio, J.P., Schmidt, Mastro and Rivera, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendant Rocky & Joe Construction Corp. appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 31, 2003, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

In opposition to the appellant setting forth a sufficient basis for summary judgment, the respondents separately showed that they had not yet had an adequate opportunity to conduct discovery and that facts essential to justify opposition to the [619]*619motion may exist but are exclusively within the knowledge of the appellant (see CPLR 3212 [f]; Mazzola v Kelly, 291 AD2d 535 [2002]; Santiago v John J. Lease Realtors, 304 AD2d 743 [2003]). Accordingly, the appellant is not entitled to summary judgment at this time. Florio, J.P., Schmidt, Mastro and Rivera, JJ., concur.

Bartell v. Mazzafero, 5 A.D.3d 618, 774 N.Y.S.2d 783 (N.Y. Ct. App. 2004).

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