Okula v. City of New York

2017 NY Slip Op 1218, 147 A.D.3d 967, 48 N.Y.S.3d 191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 2017
• Docket: 2016-08346
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants New York City Transit Authority and Metropolitan Transportation Authority appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), dated April 19, 2016, as denied that branch of their motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendant New York City Transit Authority as premature, with leave to renew upon the completion of discovery.

Ordered that the order is affirmed insofar as appealed from, with costs.

“A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment” (Brea v Salvatore, 130 AD3d 956, 956 [2015]; see Malester v Rampil, 118 AD3d 855, 856 [2014]). Here, the defendants New York City Transit Authority (hereinafter the NYCTA) and Metropolitan Transportation Authority made their motion for summary judgment about three months after they served their answer. Under the circumstances of this case, at this stage of the proceedings, the Supreme Court providently exercised its discretion in denying that branch of their motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendant NYCTA, with leave to renew upon the completion of discovery (see CPLR 3212 [f]; Brea v Salvatore, 130 AD3d 956 [2015]; Nicholson v Bader, 83 AD3d 802 [2011]; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785 [2007]).

Leventhal, J.P., Sgroi, LaSalle and Barros, JJ., concur.