Opinion
June 22, 2000.
Order, Supreme Court, New York County (Edward Lehner, J.), entered March 3, 1999, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for further discovery, unanimously modified, on the law, to deny the motion with respect to plaintiff's claim that her accident was caused by defendant's negligent repair of the sidewalk and to reinstate the complaint to that extent, and otherwise affirmed, without costs.
Donald R. Billett, for plaintiff-appellant.
William J. Pisarello, for defendant-respondent.
Before: Rosenberger, J.P., Nardelli, Andrias, Saxe, Buckley, JJ.
Although the motion court properly granted defendant summary judgment dismissing plaintiff's claim to the extent that such claim was premised on defendant's alleged special use of the property (see, Macleod v. Pete's Tavern, 87 N.Y.2d 912), defendant's motion did not address plaintiff's alternative claim that her accident was caused by defendant's negligent repair of the sidewalk. Because defendant failed to make a prima facie showing of entitlement to judgment as a matter of law on this issue, the court erred in dismissing the complaint in its entirety (see,Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
The motion court properly exercised its discretion in denying plaintiff's cross motion for further discovery since plaintiff, during the two-and-a-half years between her action's commencement and her cross motion, had already had ample opportunity to conduct discovery and, in any event, the materials sought are not relevant to proving plaintiff's surviving claim.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.