Opinion
March 31, 1994
Appeal from the Supreme Court, Bronx County (Anita Florio, J.).
Where essential facts to justify opposition to a motion for summary judgment might exist, but cannot be stated because they are in the moving party's exclusive knowledge or control, summary judgment must be denied. (CPLR 3212 [f].) Here, the IAS Court properly denied defendants' motion and granted so much of plaintiffs' cross-motion seeking a further deposition of defendant Rabiner (see, Trustco Bank v. Higgins, 191 A.D.2d 788). Moreover, the moving defendants failed to establish a prima facie showing that the causes of action have no merit, and thus denial of their motion was appropriate regardless of the sufficiency of the papers (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). The record demonstrates the existence of numerous material issues which need to be resolved, including, but not limited to, Dr. Rabiner's relationship to Dr. Suriano in connection with the performance of sonogram testing at the premises where plaintiff was examined, and Dr. Rabiner's relationship to the technician who performed the tests.
Concur — Carro, J.P., Rosenberger, Ross, Asch and Tom, JJ.