Opinion
February 7, 1994
Appeal from the Supreme Court, Westchester County (Coppola, J.).
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court properly awarded the plaintiff summary judgment. It is clear from the facts alleged that the defendant did not procure the right to present a circus at the Westchester County Center for 1990 and assign that right to the plaintiff, as was required by the contract at issue. Further, the court properly dismissed the defendant's various counter-claims, as none were supported by sufficient evidentiary facts (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395). We disagree with the defendant that the failure to present evidentiary facts should be excused pursuant to CPLR 3212 (f) on the ground that the facts needed are exclusively within the knowledge of the plaintiff. Here, the action was pending for over a year before the motion for summary judgment was made, and the defendant failed to avail itself of any opportunities to obtain disclosure of such facts (see, Stevens v. Hilmy, 185 A.D.2d 840; Yu v. Forero, 184 A.D.2d 506; 4 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3212.18). Bracken, J.P., Sullivan, Krausman and Goldstein, JJ., concur.