Gellman v. Latimore

Full title: STUART A. GELLMAN, Appellant, v. JOHN R. LATIMORE, Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 30, 1997

242 A.D.2d 920 (N.Y. App. Div. 1997)

665 N.Y.S.2d 377

Opinion

September 30, 1997

Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.

Present — Denman, P.J., Hayes, Callahan, Doerr and Fallon, JJ.

Supreme Court properly denied without prejudice plaintiff's motion for partial summary judgment dismissing defendant's counterclaims pending completion of discovery. Defendant raised material issues of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Furthermore, defendant has not yet had the opportunity to depose plaintiff. Summary judgment is inappropriate where, as here, "`the existence of essential facts depends upon knowledge exclusively within the possession of the moving party and [such facts] might well be disclosed by * * * examination before trial'" or further disclosure (Kindzierski v. Foster, 217 A.D.2d 998, 1000; see, Busby v. Ticonderoga Cent. School Dist., 222 A.D.2d 882).