Gellman v. Latimore

Appellate Division of the Supreme Court of New York

Gellman v. Latimore

242 A.D.2d 920, 665 N.Y.S.2d 377, 1997 N.Y. App. Div. LEXIS 10496

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

DecidedSeptember 30, 1997

StatusPublished

Cited by1 cases

This text of 242 A.D.2d 920 (Gellman v. Latimore) 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.

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Gellman v. Latimore, 242 A.D.2d 920, 665 N.Y.S.2d 377, 1997 N.Y. App. Div. LEXIS 10496 (N.Y. Ct. App. 1997).

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Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied [921]*921without prejudice plaintiffs motion for partial summary judgment dismissing defendant’s counterclaims pending completion of discovery. Defendant raised material issues of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562). Furthermore, defendant has not yet had the opportunity to depose plaintiff. Summary judgment is inappropriate where, as here, “ ‘the existence of essential facts depends upon knowledge exclusively within the possession of the moving party and [such facts] might well be disclosed by * * * examination before trial’ ” or further disclosure (Kindzierski v Foster, 217 AD2d 998, 1000; see, Busby v Ticonderoga Cent. School Dist, 222 AD2d 882). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Amend Pleading.) Present—Denman, P. J., Hayes, Callahan, Doerr and Fallon, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied [921]*921without prejudice plaintiffs motion for partial summary judgment dismissing defendant’s counterclaims pending completion of discovery. Defendant raised material issues of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562). Furthermore, defendant has not yet had the opportunity to depose plaintiff. Summary judgment is inappropriate where, as here, “ ‘the existence of essential facts depends upon knowledge exclusively within the possession of the moving party and [such facts] might well be disclosed by * * * examination before trial’ ” or further disclosure (Kindzierski v Foster, 217 AD2d 998, 1000; see, Busby v Ticonderoga Cent. School Dist, 222 AD2d 882). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Amend Pleading.) Present—Denman, P. J., Hayes, Callahan, Doerr and Fallon, JJ.

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Bluebook (online)

242 A.D.2d 920, 665 N.Y.S.2d 377, 1997 N.Y. App. Div. LEXIS 10496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gellman-v-latimore-nyappdiv-1997.

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