Panasia Estates, Inc. v. Hudson Insurance

83 A.D.3d 454, 919 N.Y.S.2d 849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 30, 2010, which denied without prejudice plaintiffs motion for partial summary judgment, unanimously reversed, on the law, without costs, the motion restored to the calendar and the matter remanded for further proceedings, including disposition of the motion on the merits, if possible, following the parties’ submission of papers.

The court erred in denying plaintiffs properly filed summary judgment motion, absent the submission by defendant of an affidavit in opposition to the motion showing that facts essential to justify opposition may exist but cannot then be stated (see CPLR 3212 [f]; Miller v Icon Group LLC, 77 AD3d 586 [2010]; A & E Stores, Inc. v U.S. Team, Inc., 63 AD3d 486 [2009]). Indeed, defendant failed to make any evidentiary showing that the completion of outstanding discovery will yield material and relevant evidence. Concur—Tom, J.P., Saxe, DeGrasse, Freedman and Abdus-Salaam, JJ.