Opinion
2002-10545
Argued May 9, 2003.
July 21, 2003.
In an action to recover damages for personal injuries, etc., the defendant County of Suffolk appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated October 23, 2002, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, without prejudice to renewal upon the completion of discovery.
Robert J. Cimino, County Attorney, Hauppauge, N.Y. (John M. Denby and Susan Denatal of counsel), for appellant.
Siben Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for plaintiffs-respondents.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
Under the circumstances herein, the Supreme Court providently exercised its discretion in denying the motion for summary judgment without prejudice to renewal upon completion of discovery ( see CPLR 3212[f]; Destin v. New York City Tr. Auth., 303 A.D.2d 713; Rajan v. Insler, 300 A.D.2d 463).
FRIEDMANN, MASTRO and RIVERA, JJ., concur.
I dissent. In my opinion the complaint should be dismissed insofar as asserted against the County of Suffolk.
The plaintiffs were involved in an automobile accident which took place on Route 27A located within the Town of Islip, County of Suffolk. The complaint alleges that the County was "negligent in the ownership * * * maintenance and control of the roadway." In support of its motion for summary judgment the County submitted an affidavit from an employee who stated that one of her duties was "to investigate allegations set forth in claims against the County of Suffolk by searching the official records of the Department of Public Works and ascertaining whether the County of Suffolk owns, maintains or controls a given location." The affidavit continued that pursuant to such a search the employee ascertained that the portion of Route 27A where the accident occurred "was not on the County Road System" nor was it "on the maintenance list for the County of Suffolk." Based upon this affidavit the County established its prima facie entitlement to judgment as a matter of law ( see Ajlouny v. Town of Huntington, 184 A.D.2d 486; see also Tahmisyan v. City of New York, 295 A.D.2d 600).
In order for the plaintiffs to defeat the motion, it was incumbent upon them to offer evidence to raise a triable issue of fact ( see Alvarez v. Propsect Hosp., 68 N.Y.2d 320, 324). The plaintiffs failed to meet their burden since they offered no evidence whatsoever to dispute the County's prima facie showing. Indeed, the plaintiffs did not even deny the contents of the County affidavit nor suggest that its contents might be disproven by other sources. Instead, the plaintiffs merely argued that since depositions had yet to be conducted, they were "not in a position to refute the [County's] allegations." However, "[w]hile it is true that CPLR 3212[f] permits an opposing party to obtain further discovery under certain cirucmstances, it should not be resorted to where, as here, there has been a failure to demonstrate that the discovery being sought is anything more than a fishing expedition" ( Greenberg v. McLaughlin, 242 A.D.2d 603, 604; see Price v. County of Suffolk, 303 A.D.2d 571; Karakostas v. Avis, 301 A.D.2d 632; Zarzona v. City of New York, 208 A.D.2d 920).
Accordingly, I disagree with my colleagues and conclude that the Supreme Court improvidently exercised its discretion in denying the County's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, without prejudice to renewal upon the completion of discovery.