Bernola v. Vogt

140 A.D.2d 966, 529 N.Y.S.2d 721, 1988 N.Y. App. Div. LEXIS 5924

Opinion

Memorandum: Defendants’ motion for summary judgment dismissing the complaint was properly denied and plaintiff’s motion to compel discovery, including the deposition of defendant Vogt, was properly granted. Where, as here, pertinent facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant and may be revealed through pretrial discovery, summary judgment should be denied (see, CPLR 3212 [f]; Blue Bird Coach Lines v 107 Delaware Ave., 125 AD2d 971; Mack v Gregory Mem. Hosp., 90 AD2d 969). This decision is without prejudice to defendants renewing their motion upon completion of discovery (see, Blue Bird Coach Lines v 107 Delaware Ave., supra). (Appeal from order of Supreme Court, Monroe County, Wesley, J. — dismiss complaint.) Present — Denman, J. P., Green, Pine, Balio and Davis, JJ.