Under the facts of this case, it was premature for the Supreme Court to grant the plaintiff's motion for summary judgment on the issue of liability prior to the exchange of any discovery ( see CPLR 3212[f]; Babcock v. Roche, 262 A.D.2d 512, 512–513, 691 N.Y.S.2d 343; McNally v. Fitzgerald, 260 A.D.2d 355, 356, 686 N.Y.S.2d 313; Hentschel v. Robert Campbell Carpet Servs., 256 A.D.2d 500, 500–501, 682 N.Y.S.2d 417; Barletta v. Lewis, 237 A.D.2d 238, 655 N.Y.S.2d 389). Accordingly, the motion should have been denied, without prejudice to renewal upon the completion of discovery.
DECISION ORDER Under the facts of this case, it was premature for the Supreme Court to grant the plaintiff's motion for summary judgment on the issue of liability prior to the exchange of any discovery ( see CPLR 3212[f]; Babcock v Roche, 262 AD2d 512, 512-513; McNally v Fitzgerald, 260 AD2d 355, 356; Hentschel v Campbell Carpet Servs., 256 AD2d 500, 500-501; Barletta v Lewis, 237 AD2d 238). Accordingly, the motion should have been denied, without prejudice to renewal upon the completion of discovery.
The defendants did not have an adequate opportunity to conduct discovery ( see Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785). Moreover, to the extent that the defendants allege that the plaintiff may be comparatively negligent, "facts essential to justify opposition to the motion are within the exclusive knowledge of the plaintiff and may be revealed through pretrial discovery" ( Barletta v Lewis, 237 AD2d 238, 238). Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability, without prejudice to renewal.
Leave to amend should be freely given where, as here, "the opponent is not surprised or prejudiced by the proposed amendment, and the proposed amendment appears to be meritorious" ( Paolano v. Southside Hosp., 3 A.D.3d 524, 524; see CPLR 3025 [b]). Because discovery has not been conducted with respect to the special employment defense, however, the court properly denied that part of defendants' motion seeking summary judgment dismissing the complaint against Span based upon that defense ( see Barletta v. Lewis, 237 A.D.2d 238; see also Groves v. Land's End Hous. Co., 80 N.Y.2d 978, 980).
ORDERED that the order is affirmed, with one bill of costs. Under the circumstances of this case, where discovery aimed at uncovering essential facts was still outstanding, the Supreme Court properly denied the appellant's motion for summary judgment ( see Rosa v. Colonial Tr., 276 A.D.2d 781; see also Destin v. New York City Tr. Auth., 303 A.D.2d 713; Barletta v. Lewis, 237 A.D.2d 238). ALTMAN, J.P., H. MILLER, COZIER and MASTRO, JJ., concur.
Contrary to the contention of the moving defendants, under the circumstances of this case, the Supreme Court properly denied their motion for summary judgment without prejudice to renew upon completion of discovery ( see CPLR 3212[a]; City of Rochester v. Chiarella, 65 N.Y.2d 92; Barletta v. Lewis, 237 A.D.2d 238). FLORIO, J.P., FRIEDMANN, H. MILLER and MASTRO, JJ., concur.
Contrary to the plaintiff's contention, the Supreme Court properly found that she had failed to make a prima facie showing of her entitlement to judgment as a matter of law. The brief account of the accident set forth in the plaintiff's affidavit was insufficient to demonstrate that she acted reasonably under the circumstances, and was free from comparative negligence (see, Barletta v. Lewis, 237 A.D.2d 238; Davis v. Federated Dept. Stores, 227 A.D.2d 514; Jong Chan Lee v. Bonavita, 216 A.D.2d 8; Rodriguez v. Logan, 188 A.D.2d 522). Moreover, the plaintiff's motion for summary judgment, which was made only one month after joinder of issue and before pretrial discovery had even begun, was premature (see, Barletta v Lewis, supra; Rodriguez v. Logan, supra). Pizzuto, J.P., Santucci, Friedmann and Luciano, JJ., concur.
The motion for summary judgment was properly denied as premature based upon the City's failure to comply with the plaintiff's notice for discovery and inspection ( see, Hart v Incorporated Vil. of Val. Stream, 193 AD2d 781; see also, Barletta v Lewis, 237 AD2d 238; Schleich v Gruber, 133 AD2d 224; Smith v City of New York, 133 AD2d 818). However, the court should have exercised its discretion in favor of granting the application to renew, which was made after the City furnished its discovery response, since there was no proof that the City created the allegedly defective condition ( see generally, Hantz v Fishman, 155 AD2d 415; Oremland v Miller Minuteman Constr. Corp., 133 AD2d 816; Pinto v Pinto, 120 AD2d 337).
Kelly v Shin, 171 A.D.3d 905 [2d Dept 2019] (a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision); cf., Barletta v Lewis, 237 A.D.2d 238 [2d Dept 1997] (where there is sufficient reason to believe that facts essential to justify opposition to the motion are within the exclusive knowledge of the plaintiff and may be revealed through pretrial discovery, summary judgment is premature).
The defendants did not have an adequate opportunity to conduct discovery ( see Amico v. Melville Volunteer Fire Co., Inc., 39 A.D.3d 784, 785, 832 N.Y.S.2d 813). Moreover, to the extent that the defendants allege that the plaintiff may be comparatively negligent, “facts essential to justify opposition to the motion are within the exclusive knowledge of the plaintiff and may be revealed through pretrial discovery” ( Barletta v. Lewis, 237 A.D.2d 238, 238, 655 N.Y.S.2d 389). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability, without prejudice to renewal.