Frouws v. Campbell Foundry Co.

Appellate Division of the Supreme Court of New York

Frouws v. Campbell Foundry Co.

275 A.D.2d 761, 714 N.Y.S.2d 227, 2000 N.Y. App. Div. LEXIS 9365

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 25, 2000

StatusPublished

Cited by9 cases

This text of 275 A.D.2d 761 (Frouws v. Campbell Foundry Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frouws v. Campbell Foundry Co., 275 A.D.2d 761, 714 N.Y.S.2d 227, 2000 N.Y. App. Div. LEXIS 9365 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Und'erwood, J.), dated October 20, 1999, which granted the separate motions of the defendant Campbell Foundry Company and the defendant John E. Potente & Sons, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs.

Upon the showing made by each defendant that it had no liability for the subject accident, the plaintiffs failed to raise any triable issue of fact (see, CPLR 3212 [b]).

Pursuant to CPLR 3212 (f), the trial court has the discretion to deny a motion for summary judgment or order a continuance to allow disclosure if “facts essential to justify opposition may exist, but cannot then be stated”. For the court to delay action on the motion, there must be a likelihood of discovery leading to such evidence (see, Mazzaferro v Barterama Corp., 218 AD2d 643). The “mere hope” that evidence sufficient to defeat the motion may be uncovered during the discovery process is not enough (see, Mazzaferro v Barterama Corp., supra). Since there was only hope and speculation as to what additional discovery would uncover in the present situation, the court properly granted the motions for summary judgment. Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Und'erwood, J.), dated October 20, 1999, which granted the separate motions of the defendant Campbell Foundry Company and the defendant John E. Potente & Sons, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs.

Upon the showing made by each defendant that it had no liability for the subject accident, the plaintiffs failed to raise any triable issue of fact (see, CPLR 3212 [b]).

Pursuant to CPLR 3212 (f), the trial court has the discretion to deny a motion for summary judgment or order a continuance to allow disclosure if “facts essential to justify opposition may exist, but cannot then be stated”. For the court to delay action on the motion, there must be a likelihood of discovery leading to such evidence (see, Mazzaferro v Barterama Corp., 218 AD2d 643). The “mere hope” that evidence sufficient to defeat the motion may be uncovered during the discovery process is not enough (see, Mazzaferro v Barterama Corp., supra). Since there was only hope and speculation as to what additional discovery would uncover in the present situation, the court properly granted the motions for summary judgment. Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.

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Bluebook (online)

275 A.D.2d 761, 714 N.Y.S.2d 227, 2000 N.Y. App. Div. LEXIS 9365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frouws-v-campbell-foundry-co-nyappdiv-2000.

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