Blue Bird Coach Lines, Inc. v. 107 Delaware Avenue, N. V., Inc.

125 A.D.2d 971, 510 N.Y.S.2d 364, 1986 N.Y. App. Div. LEXIS 63155

Opinion

Order unanimously reversed, on the law, with costs, and motion denied, in accordance with the following memorandum: In May 1984, plaintiff served defendant 107 Delaware Avenue, N. V., Inc. with a demand for a bill of particulars and a notice to take its deposition. No bill of particulars has ever been served and the deposition has been adjourned on a number of occasions at defendant’s request. In September 1985 this defendant made the instant motion pursuant to CPLR 3212 for summary judgment to dismiss plaintiff’s complaint as against it. That motion should have been denied. Plaintiff’s application for a deposition was pending when defendant moved for summary judgment. Plaintiff recited in its affirmation in opposition to the summary judgment motion that there was a need to conduct discovery proceedings to ascertain information within the knowledge of the defendant. 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]; Mack v Gregory Mem. Hosp., 90 AD2d 969).

This reversal is without prejudice to defendant renewing its motion upon completion of all depositions pertaining to the named defendants. Plaintiff may renew its motion for preclusion. (Appeal from order of Supreme Court, Cattaraugus County, Ricotta, J. — summary judgment.) Present — Dillon, P. J., Callahan, Green, Balio and Schnepp, JJ.