Opinion
1120 CA 19-02024
12-23-2020
L&M GROUP, LIMITED, Joseph Lipsitz and Max Lipsitz, Plaintiffs-Appellants, v. Amy LIPSITZ, Defendant-Respondent.
LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (VINCENT MIRANDA OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. PHILLIPS LYTLE LLP, BUFFALO (AMANDA L. LOWE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (VINCENT MIRANDA OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
PHILLIPS LYTLE LLP, BUFFALO (AMANDA L. LOWE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, that part of the motion seeking summary judgment dismissing the complaint is denied, and the complaint is reinstated.
Memorandum: Plaintiffs commenced this breach of contract action alleging, inter alia, that defendant violated the non-solicitation and non-disparagement provisions of a purchase and separation agreement and general release, whereby defendant agreed to sell her book of business with respect to plaintiff L&M Group, Limited. Six months after the action was commenced and while plaintiffs' discovery demands and motions to compel discovery were pending, defendant moved for, among other things, summary judgment dismissing the complaint. Plaintiffs now appeal from an order insofar as it granted the motion to that extent. We reverse the order insofar as appealed from.
We agree with plaintiffs that the motion to the extent that it sought summary judgment dismissing the complaint is "premature because there has been no reasonable opportunity for discovery" ( Hager v. Denny's, Inc. , 281 A.D.2d 921, 921, 722 N.Y.S.2d 453 [4th Dept. 2001] ; see Urcan v. Cocarelli , 234 A.D.2d 537, 537, 651 N.Y.S.2d 611 [2d Dept. 1996] ). In opposing defendant's motion as premature pursuant to CPLR 3212 (f), plaintiffs "made the requisite evidentiary showing to support the conclusion that facts essential to justify opposition may exist but could not then be stated" ( Beck v. City of Niagara Falls , 169 A.D.3d 1528, 1529, 92 N.Y.S.3d 845 [4th Dept. 2019], amended on rearg on other grounds 171 A.D.3d 1573, 97 N.Y.S.3d 546 [4th Dept. 2019] ).