Opinion
462 CA 18–02281
04-26-2019
Jeffrey R. SMITH and Nancy O. Smith, Plaintiffs-Appellants, v. Marianne D.S. BAILEY, Individually, and Marianne D.S. Bailey and Connie M. Smith, as Co-Trustees of the Smith Living Trust Dated December 8, 1999 (Situs New York), Defendants-Respondents.
MELVIN & MELVIN, PLLC, SYRACUSE (MICHAEL R. VACCARO OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
MELVIN & MELVIN, PLLC, SYRACUSE (MICHAEL R. VACCARO OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs appeal from an order that, inter alia, "denied without prejudice" that part of their motion for summary judgment on their first cause of action. Contrary to plaintiffs' contention, we conclude that Supreme Court properly denied that part of the motion. Defendants, in opposing plaintiffs' motion, established that facts essential to justify opposition may exist but cannot now be stated (see Beck v. City of Niagara Falls, 169 A.D.3d 1528, 1529, 92 N.Y.S.3d 845 [4th Dept. 2019] ; cf. Resetarits Constr. Corp. v. Elizabeth Pierce Olmsted, M.D. Center for the Visually Impaired [appeal No. 2], 118 A.D.3d 1454, 1456, 988 N.Y.S.2d 797 [4th Dept. 2014] ) and that " ‘facts essential to oppose the motion were in [plaintiffs'] exclusive knowledge and possession and could be obtained by discovery’ " ( Wright v. Shapiro, 16 A.D.3d 1042, 1043, 791 N.Y.S.2d 799 [4th Dept. 2005] ). "[I]n view of the limited discovery that has been conducted," we conclude that the motion was premature and thus was properly denied without prejudice ( Coniber v. Center Point Transfer Sta., Inc., 82 A.D.3d 1629, 1629, 919 N.Y.S.2d 409 [4th Dept. 2011] ; see CPLR 3212[f] ).
Based on our determination, we do not address plaintiffs' remaining contentions.