Opinion
CA 04-01349
December 30, 2004.
Appeal from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered October 7, 2003. The order denied without prejudice the motion of defendants Deargate Homes Limited and Frank Mauro for summary judgment dismissing the complaint and cross claims against defendant Frank Mauro.
Before: Green, J.P., Pine, Hurlbutt, Martoche and Smith, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied without prejudice the motion of Deargate Homes Limited and Frank Mauro (defendants) for summary judgment dismissing the complaint and cross claims against Mauro. Where, as here, "the facts essential to opposing defendant[s'] motion may exist but cannot be stated without conducting discovery of employees of defendants and others, the court should . . . den[y] the motion pursuant to CPLR 3212 (f)" ( Perotto Dev. Corp. v. Sear-Brown Group, 269 AD2d 749, 749; see Borland v. Sampson Steel Fabricators, 298 AD2d 831, 833; Sumell v. Wegmans Food Mkts., 254 AD2d 702).