Opinion
2019–06995 Index No. 707271/18
05-27-2020
Anthony CASCIO, appellant, v. YRC, INC., et al., respondents.
Cellino & Barnes, P.C., New York, N.Y. (Jordan Finkelstein of counsel), for appellant. Salmon, Ricchezza, Singer & Turchi, LLP, New York, N.Y. (Jeffrey A. Segal and Ian Kingsley of counsel), for respondents.
Cellino & Barnes, P.C., New York, N.Y. (Jordan Finkelstein of counsel), for appellant.
Salmon, Ricchezza, Singer & Turchi, LLP, New York, N.Y. (Jeffrey A. Segal and Ian Kingsley of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, VALERIE BRATHWAIT NELSON, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pam B. Jackman Brown, J.), entered April 10, 2019. The order denied the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
On May 7, 2017, the plaintiff allegedly was injured when the vehicle he was operating was struck by a vehicle operated by the defendant Willie Wheeler and owned by the defendant YRC, Inc. (hereinafter YRC). In May 2018, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in the accident. YRC interposed an answer to the complaint on July 3, 2018, and Wheeler interposed his answer on August 21, 2018.
On September 24, 2018, prior to the exchange of any discovery, the plaintiff made the instant motion for summary judgment on the issue of liability. The defendants opposed the motion, arguing, among other things, that summary judgment was premature. In the order appealed from, the Supreme Court denied the plaintiff's motion as premature.
"A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" ( Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559 ; see Pinella v. Crescent St. Corp., 176 A.D.3d 985, 110 N.Y.S.3d 705 ). Here, the plaintiff moved for summary judgment on the issue of liability approximately one month after Wheeler filed his answer, and prior to the exchange of any discovery (see Amyotte v. Armic Serv. Corp., 167 A.D.3d 558, 86 N.Y.S.3d 908 ; Chander v. Eagle Sanitation, Inc., 153 A.D.3d 658, 57 N.Y.S.3d 893 ), and the record reflects that discovery might lead to relevant evidence pertaining to the circumstances of the accident (see Haxhijaj v. Ferrer, 166 A.D.3d 592, 593, 84 N.Y.S.3d 908 ; Hawana v. Carbuccia, 164 A.D.3d 563, 565, 81 N.Y.S.3d 543 ).
Accordingly, we agree with the Supreme Court's determination denying the plaintiff's motion for summary judgment on the issue of liability.
RIVERA, J.P., CHAMBERS, ROMAN and BRATHWAITE NELSON, JJ., concur.