David B. v. Millar

2 A.D.3d 763, 769 N.Y.S.2d 731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 2003
• Status: Published

Opinion

— In an action, inter alia, to recover damages for negligent hiring, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (O’Connell, J.), dated October 29, 2002, as granted the cross motion of the defendants St. Peter and Paul Roman Catholic Church and Roman Catholic Diocese of Rockville Centre for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly granted the cross motion of the defendants St. Peter and Paul Roman Catholic Church and Roman Catholic Diocese of Rockville Centre (hereinafter the church defendants) for summary judgment dismissing the complaint without affording the plaintiff further disclosure. The plaintiffs attempted to prevent summary judgment dismissing their complaint by, in effect, relying on CPLR 3212 (f). A party opposing a motion for summary judgment “must demonstrate [an] acceptable excuse for [the] failure to [tender proof in admissible form]; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The mere hope of discovering some evidence during further disclosure is insufficient to defeat summary judgment (see Kershis v City of New York, 303 AD2d 643 [2003]).

The plaintiffs argue that there are issues of fact with respect to the applicability of the doctrine of respondeat superior. This argument is not properly before this Court since it is raised for the first time in their reply brief (see Coppola v Coppola, 291 AD2d 477 [2002]). In any event, it is without merit (see Anonymous v Dobbs Ferry Union Free School Dist., 290 AD2d 464, 465 [2002]).

The plaintiffs’ remaining contentions are without merit. Altman, J.P., Goldstein, Crane and Mastro, JJ., concur.