Opinion
September 22, 1978
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Simons, Hancock, Jr., and Witmer, JJ.
Order unanimously reversed, without costs, and matter remitted to Special Term, Erie County for further proceedings in accordance with the following memorandum: These are appeals by plaintiff from orders granting summary judgment to defendants Town of Holland and County of Erie on the ground that the State of New York was solely responsible for the maintenance of the portion of New York Route 16 in Erie County where plaintiff's automobile accident occurred. Plaintiff has shown the existence of a contract between the State and defendant county delegating maintenance of another portion of Route 16 to defendant county and he contends that there may be additional maintenance contracts between the State and defendants, or that defendants may have assumed, through custom or practice, responsibility for maintenance of the part of the highway where plaintiff's accident occurred. Summary judgment should not be granted where facts are available only to the movant and might be disclosed through pretrial disclosure (CPLR 3212, subd [f]; Terranova v Emil, 20 N.Y.2d 493; Procter Gamble Distr. Co. v Lawrence Amer. Field Warehousing Corp., 16 N.Y.2d 344). Plaintiff should be given an opportunity to discover the existence of further maintenance contracts and customs and practices of defendants concerning maintenance of the highway, which information is within the knowledge of defendants. The motions for summary judgment are continued pursuant to CPLR 3212 (subd [f]) until December 15, 1978 in order to permit plaintiff to develop through disclosure facts in opposition to defendants' motions which Special Term shall then determine.