Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP

44 A.D.3d 557, 843 N.Y.S.2d 630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2007
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 5, 2007, awarding plaintiff the principal sum of $200,000, pursuant to a revised order, same court and Justice, entered on or about May 21, 2007, which granted plaintiff summary judgment, unanimously affirmed, with costs. Appeal from orders, same court and Justice, entered on or about May 1 and 27, 2007, unanimously dismissed, without costs.

Defendant failed to contradict, through admissible evidence, the basic contention that it did not have the authority to send the money held in its escrow account on plaintiffs behalf to any entity other than plaintiff. We are not persuaded by defendant’s argument that its lack of discovery requires denial of the motion as premature. To avail oneself of CPLR 3212 (f) to defeat or delay summary judgment, a party must demonstrate that the needed proof is within the exclusive knowledge of the moving party (Berkeley Fed. Bank & Trust v 229 E. 53rd St. Assoc., 242 AD2d 489 [1997]), that the claims in opposition are supported by something other than mere hope or conjecture (Neryaev v Solon, 6 AD3d 510 [2004]), and that the party has at least made some attempt to discover facts at variance with the moving party’s proof (see Cruz v Otis El. Co., 238 AD2d 540 [1997]). Defendant has failed to demonstrate that necessary diligence.

We have considered defendant’s remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Nardelli, Sweeny and Catterson, JJ. [See 2007 NY Slip Op 31116(U).]