Martino v. Midtown Trackage Ventures, LLC

Full title: Thomas Martino, appellant, v. Midtown Trackage Ventures, LLC, defendant…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Feb 22, 2017

2017 N.Y. Slip Op. 1346 (N.Y. App. Div. 2017)

Opinion

2015-10274

02-22-2017

Thomas Martino, appellant, v. Midtown Trackage Ventures, LLC, defendant, Tishman Construction Corporation, respondent.

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Arishia Hourizodeh], of counsel), for appellant. Chesney & Nicholas, LLP, Syosset, NY (Jeffrey M. Burkhoff of counsel), for respondent.

L. PRISCILLA HALL, J.P.

JEFFREY A. COHEN ROBERT J. MILLER FRANCESCA E. CONNOLLY, JJ. (Index No. 600003/15)

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Arishia Hourizodeh], of counsel), for appellant.

Chesney & Nicholas, LLP, Syosset, NY (Jeffrey M. Burkhoff of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), dated September 16, 2015, as granted that branch of the motion of the defendant Tishman Construction Corporation which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Tishman Construction Corporation which was for summary judgment dismissing the complaint insofar as asserted against it is denied, with leave to renew after the completion of discovery.

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Brea v Salvatore, 130 AD3d 956, 956; Malester v Rampil, 118 AD3d 855, 856). Here, the defendant Tishman Construction Corporation (hereinafter Tishman) moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it about five months after the plaintiff commenced this action. Under the circumstances of this case, at this stage of the proceedings, the Supreme Court should have denied that branch of Tishman's motion with leave to renew after the completion of discovery (see CPLR 3212[f]; Brea v Salvatore, 130 AD3d 956; Nicholson v Bader, 83 AD3d 802; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785).

HALL, J.P., COHEN, MILLER and CONNOLLY, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court