Opinion
2013-05-1
Rastislar CHMELOVSKY, plaintiff, v. COUNTRY CLUB HOMES, INC., defendant, SK Home Improvement, LLC, et al., defendants third-party plaintiffs-respondents; Igor Vcelarik, et al., third-party defendants-appellants.
Baxter Smith Shapiro, P.C., Hicksville, N.Y. (William C. Lawlor, Sim Shapiro, Robert C. Baxter, and Margo Ludlam of counsel), for third-party defendants-appellants. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for defendants third-party plaintiffs-respondents.
Baxter Smith Shapiro, P.C., Hicksville, N.Y. (William C. Lawlor, Sim Shapiro, Robert C. Baxter, and Margo Ludlam of counsel), for third-party defendants-appellants. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for defendants third-party plaintiffs-respondents.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the third-party defendants appeal from so much of an order of the Supreme Court, Putnam County (Nicolai, J.), dated March 30, 2012, as denied, as premature, that branch of their motion which was for summary judgment dismissing the third-party complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied, as premature, that branch of the third-party defendants' motion which was for summary judgment dismissing the third-party complaint. “A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated” (Matter of Fasciglione, 73 A.D.3d 769, 770, 899 N.Y.S.2d 645;seeCPLR 3212[f]; Evangelista v. Kambanis, 74 A.D.3d 1278, 903 N.Y.S.2d 243;Rodriguez v. DeStefano, 72 A.D.3d 926, 898 N.Y.S.2d 495). At the time when the third-party defendants' motion was made, no discovery had taken place. The third-party plaintiffs raised issues in support of their position that required discovery. Contrary to the third-party defendants' contentions, under these circumstances, the Supreme Court did not improvidently exercise its discretion in denying, as premature, their motion for summary judgment ( seeCPLR 3212[f]; Evangelista v. Kambanis, 74 A.D.3d 1278, 903 N.Y.S.2d 243;Matter of Fasciglione, 73 A.D.3d 769, 899 N.Y.S.2d 645;Gruenfeld v. City of New Rochelle, 72 A.D.3d 1025, 900 N.Y.S.2d 144;Rodriguez v. DeStefano, 72 A.D.3d 926, 898 N.Y.S.2d 495;Harvey v. Nealis, 61 A.D.3d 935, 877 N.Y.S.2d 459).
The third-party defendants' remaining contentions either are without merit or need not be addressed in light of our determination.