Pursuant to CPLR 3212 (f) a motion for summary judgment may be denied as premature where the opposing party shows that "facts essential to oppose the motion were in [the movant's] exclusive knowledge and possession and could be obtained by discovery" ( Franklin v. Dormitory Auth. of State of N.Y., 291 AD2d 854, 854; see 3212 [f]; Welch Foods v. Wilson, 277 AD2d 882, 883). "'Mere hope that somehow the plaintiff will uncover evidence that will prove a case provides no basis pursuant to CPLR 3212 (f) for postponing a determination of a summary judgment motion'" ( Mackey v. Sangani, 238 AD2d 919, 920, quoting Plotkin v. Franklin, 179 AD2d 746, 746).
When the Court of Claims sua sponte gave claimant a second opportunity to oppose summary judgment, he failed to submit any affidavits or to make any showing that the State's conduct during discovery prevented him from proffering sufficient facts to adequately oppose the motion. Since claimant had "ample opportunity to obtain the information [he] consider[ed] necessary to oppose a summary judgment motion[,] [t]here is no reason to delay judgment to enable [him] to engage in further discovery merely because [he] speculate[s] that [he] might discover something that will prove [his] case" (Allen v. Vuley, 223 A.D.2d 868, 869, citing Plotkin v. Franklin, 179 A.D.2d 746). To the extent that the dissent points to "record evidence" of a modification of the State's website as being sufficient to defeat summary judgment, we note that this "record evidence" was not before the Court of Claims on the motion for summary judgment, but rather was apparently submitted on a prior discovery dispute.
rsuant to Labor Law § 240 Lab.(1), and that the violation was a proximate cause of the injuries (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555; Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513; Bryan v. City of New York, 206 A.D.2d 448; Whalen v. Sciame Constr. Co., 198 A.D.2d 501). The appellants failed to submit evidence in admissible form to rebut this prima facie showing (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 560). Contrary to the appellants' contention, the facts surrounding this accident were not within the exclusive knowledge of the plaintiff (see, Masiello v. Belcastro, 237 A.D.2d 335; Bryan v. City of New York, 206 A.D.2d 448, supra; Bras v. Atlas Constr. Corp., 166 A.D.2d 401;Pritchard v. Murray Walter, Inc., 157 A.D.2d 1012). Furthermore, the appellants' mere hope that further discovery will reveal something helpful to their case provides no basis for postponing the determination of the plaintiff's motion (see, Bryan v. City of New York, supra; Plotkin v. Franklin, 179 A.D.2d 746).
The plaintiff failed to submit evidence raising a triable issue of fact as to whether the incident in question was reasonably foreseeable. The plaintiff's belief that additional discovery might reveal something helpful to his case does not provide a basis pursuant toCPLR 3212(f) for postponing a determination of a motion for summary judgment (see, Cooper v. Milton Paper Co., 258 A.D.2d 614;Agoglia v. Sterling Foster Co., 237 A.D.2d 549; Plotkin v. Franklin, 179 A.D.2d 746).
The complaint was properly dismissed as the plaintiffs cannot maintain an action against the employer or fellow employee of the plaintiffs' decedent for the death that arose out of and in the course of the decedent's employment ( see, Workers' Compensation Law §§ 10 Work. Comp., 11 Work. Comp., 29 Work. Comp.[6]; Gonzales v. Armac Indus., 81 N.Y.2d 1; O'Rourke v. Long, 41 N.Y.2d 219; McGurran v. DiCanio Planned Dev. Corp., 251 A.D.2d 467; Vanerstrom v. Strasser, 240 A.D.2d 563). The plaintiffs failed to submit any evidence sufficient to raise a triable issue of fact that the defendants were not immune from suit under the Workers' Compensation Law, and the plaintiffs' mere hope that somehow they will uncover evidence that will prove their case provides no basis pursuant to CPLR 3212 (f) for postponing summary disposition ( see, Agoglia v. Sterling Foster Co., 237 A.D.2d 549; Plotkin v. Franklin, 179 A.D.2d 746). O'Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.
In opposition to the hospital's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact that the hospital may be estopped from denying liability for the alleged negligence of SHR, an independent laboratory, or that the hospital exercised actual direction or control over SUR ( see, Gunther v. Staten Is. Hosp., 226 A.D.2d 427; Sarivola v. Brookdale Hosp. Med. Ctr., 204 A.D.2d 245). Moreover, the plaintiff's mere hope that additional discovery will reveal something helpful to her case concerning the hospital's vicarious liability for the alleged negligence of SHR does not provide a basis for postponing determination of the motion at bar ( see, Bryan v. City of New York, 206 A.D.2d 448; Plotkin v. Franklin, 179 A.D.2d 746). The action was pending for over four years before the motion was made, and the plaintiff failed to avail herself of any opportunities to obtain disclosure of the necessary facts ( see, Meath v. Mishrick, 68 N.Y.2d 992, supra; Douglas Manor Assn. v. Alimaras, 215 A.D.2d 522). Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.
Bare conclusory and speculative allegations are insufficient to defeat a motion for summary judgment ( see, Maviglia v. Inapart Props. Corp., 149 A.D.2d 482). The plaintiff's belief that additional discovery might reveal something helpful to his case does not provide a basis pursuant to CPLR 3212 (f) for postponing a determination of a summary judgment motion ( see, Bryan v. City of New York, 206 A.D.2d 448; Plotkin v. Franklin, 179 A.D.2d 746). Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.
Although CPLR 3212 (f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated ( see, Urcan v. Cocarelli, 234 A.D.2d 537), it should not be resorted to where, as here, there has been a failure to demonstrate that the discovery sought would produce relevant evidence to support the plaintiffs' allegations ( see, Greenberg v. McLaughlin, 242 A.D.2d 603; Zarzona v. City of New York, 208 A.D.2d 920; Plotkin v. Franklin, 179 A.D.2d 746; Kenworthy v. Town of Oyster Bay, 116 A.D.2d 628; see also, Auerbach v. Bennett, 47 N.Y.2d 619, 636). In addition, the respondents are entitled to dismissal of the cause of action to recover damages for intentional infliction of emotional distress.
We reject the contention of plaintiff that the motion for summary judgment is premature because defendant has not yet been deposed. "Mere hope that somehow the plaintiff will uncover evidence that will prove a case provides no basis pursuant to CPLR 3212 (f) for postponing a determination of a summary judgment motion" ( Plotkin v. Franklin, 179 A.D.2d 746 ; see, Home Sav. Bank v. Arthurkill Assocs., 173 A.D.2d 776, 777, lv dismissed 78 N.Y.2d 1071).
On this record, the appellants' separate motions for summary judgment dismissing the complaint insofar as asserted against them should have been granted. CPLR 3212 (f) does not countenance the postponement of summary disposition where, in opposing the defendants' motion, the plaintiff merely speculates that "discovery might uncover * * * that [the injuries sued upon] resulted from the defendant's negligence" ( Wood v Otherson, 210 AD2d 473, 474; Zarzona v City of New York, 208 AD2d 920; Kracker v Spartan Chem. Co., 183 AD2d 810, 811; European Am. Bank v Lofrese, 182 AD2d 67, 74; Weinstein v Cohen, 179 AD2d 806, 807; Plotkin v Franklin, 179 AD2d 746). We note that in opposing the moving defendants' showing of entitlement to summary judgment, the Plaintiff's submitted only a hearsay affidavit relating rumors heard from other individuals, none of whom witnessed the decedent's accident ( see, e.g., Rosenthal v Village of Quogue, 205 AD2d 745, 746; Mackay v Starrett City, 177 AD2d 620).