Magee v. County of Suffolk

14 A.D.3d 664, 789 N.Y.S.2d 289

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant County of Suffolk appeals from an order of the Supreme Court, Suffolk County (Burke, J.), dated April 23, 2004, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is modified, on the law, by adding thereto, after the word “denied,” the words “without prejudice to renewal after discovery is completed”; as so modified, the order is affirmed, without costs or disbursements.

Contrary to the appellant’s contention, the Supreme Court properly denied its motion for summary judgment. The motion was made before the plaintiff had an opportunity to conduct discovery, and the affidavit submitted in support of the appellant’s motion recited matters that were exclusively within the appellant’s knowledge (see 181 S. Franklin Assoc. v Y & R Assoc., 6 AD3d 594 [2004]; Morris v Hochman, 296 AD2d 481 [2002]; see also Grumman Aerospace Corp. v Rice, 199 AD2d 365 [1993]; Reohr v Golub Corp., 242 AD2d 850 [1997]). Thus, the appellant’s motion was premature. Accordingly, we modify the order so as to permit renewal of the motion after discovery is completed. Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.