Dushnick v. Bellamy

119 A.D.3d 730, 989 N.Y.S.2d 317

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered December 17, 2012, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

CPLR 3212 (f) provides that “where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” (Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637 [2006] [internal quotation marks omitted]). “This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793 [1988]). Here, in opposition to the defendant’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised issues warranting further discovery. Accordingly, the Supreme Court properly denied, without prejudice to renewal upon the completion of discovery, the defendant’s motion for summary judgment dismissing the complaint (see TD Bank, N.A. v 126 Spruce St., LLC, 117 AD3d 716, 717 [2014]; Postilio v Deblasi, 116 AD3d 832 [2014]).

Mastro, J.E, Chambers, Lott and Roman, JJ., concur.