Opinion
2016–08472 Index No. 504141/16
12-06-2017
Chaim Victor SALAMEH, et al., respondents, v. Igor YARKOVSKI, et al., defendants, Cab East, LLC, appellant.
Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Michael J. White and Alexander Johnson of counsel), for defendant Igor Yarkovski.
Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Michael J. White and Alexander Johnson of counsel), for defendant Igor Yarkovski.
RANDALL T. ENG, P.J. SHERI S. ROMAN ROBERT J. MILLER LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the defendant Cab East, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County Toussaint, J.), dated August 3, 2016, as denied, as premature, its motion for summary judgment dismissing the complaint insofar as asserted against it, with leave to renew after the completion of discovery.
ORDERED that the order is affirmed insofar as appealed from, with costs.
A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Martino v. Midtown Trackage Ventures, LLC, 147 A.D.3d 1040, 1040, 46 N.Y.S.3d 911; Okula v. City of New York, 147 A.D.3d 967, 968, 48 N.Y.S.3d 191 ; Brea v. Salvatore, 130 A.D.3d 956, 956, 13 N.Y.S.3d 839 ; Malester v. Rampil, 118 A.D.3d 855, 856, 988 N.Y.S.2d 226 ). A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated (see CPLR 3212 [f] ; Ingram v. Bay Ridge Auto. Mgt. Corp., 145 A.D.3d 672, 672–673, 41 N.Y.S.3d 902; Nicholson v. Bader, 83 A.D.3d 802, 802, 920 N.Y.S.2d 682 ). "A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" ( Antonyshyn v. Tishman Constr. Corp., 153 A.D.3d 1308, 1310, 61 N.Y.S.3d 141 [internal quotation marks omitted]; see Rungoo v. Leary, 110 A.D.3d 781, 783, 972 N.Y.S.2d 672 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559 ).
Here, the defendant Cab East, LLC (hereinafter Cab), moved for summary judgment dismissing the complaint insofar as asserted against it less than two months after the plaintiffs commenced this action, prior to the exchange of any discovery. Furthermore, in this action to recover damages for personal injuries arising from a motor vehicle accident, the submissions in opposition to Cab's motion sufficiently established that facts may exist that would demonstrate that Cab owned one of the vehicles involved in the accident. Thus, an opportunity should be provided for the parties to conduct discovery which may result in disclosure of relevant information. Accordingly, the Supreme Court properly denied, as premature, Cab's motion for summary judgment dismissing the complaint insofar as asserted against it, with leave to renew upon the completion of discovery (see CPLR 3212[f] ; Martino v. Midtown Trackage Ventures, LLC, 147 A.D.3d at 1040, 46 N.Y.S.3d 911; Ingram v. Bay Ridge Auto. Mgt. Corp., 145 A.D.3d at 673, 44 N.Y.S.3d 56 ; Brea v. Salvatore, 130 A.D.3d at 957, 13 N.Y.S.3d 839 ; Nicholson v. Bader, 83 A.D.3d at 802, 920 N.Y.S.2d 682 ; cf. Rungoo v. Leary, 110 A.D.3d at 783, 972 N.Y.S.2d 672 ; Cajas–Romero v. Ward, 106 A.D.3d at 852, 965 N.Y.S.2d 559 ).
ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.