Marcus Dairy, Inc. v. Jacene Realty Corp.

245 A.D.2d 493, 666 N.Y.S.2d 31, 1997 N.Y. App. Div. LEXIS 13250

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1997
• Status: Published

Opinion

—In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, West-Chester County (Coppola, J.), dated February 20, 1997, which, upon a decision of the same court dated January 8, 1997, granted the motion by the defendant Columbia Equities, Ltd., pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it and, in effect, denied the plaintiff’s cross motion to compel discovery of Columbia Equities, Ltd., and dismissed the complaint insofar as asserted against Columbia Equities, Ltd.

Ordered that the order is reversed, with costs, the motion by Columbia Equities, Ltd., to dismiss the complaint is denied, and the plaintiffs cross motion to compel discovery is granted.

The disposition of this matter by summary dismissal under CPLR 3211 (a) (7) is premature. It appears from the documentation and brief deposition testimony submitted by the plaintiff, that facts essential to justify opposition to the motion of Columbia Equities, Ltd. to dismiss may exist, but cannot now be stated, and that discovery is required (see, CPLR 3211 [d]). Rosenblatt, J. P., Altman, Florio and McGinity, JJ., concur.