Opinion
2014-07-16
Bobi DUSHNICK, respondent, v. Nehemiah BELLAMY, appellant.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for appellant. Russo Karl Widmaier & Cordano PLLC, Hauppauge, N.Y. (Joseph C. Tonetti of counsel), for respondent.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for appellant. Russo Karl Widmaier & Cordano PLLC, Hauppauge, N.Y. (Joseph C. Tonetti of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered December 17, 2012, which denied his motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
CPLR 3212(f) provides that “where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” ( Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183 [internal quotation marks omitted] ). “This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” ( Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 793, 533 N.Y.S.2d 143). Here, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised issues warranting further discovery. Accordingly, the Supreme Court properly denied, without prejudice to renewal upon the completion of discovery, the defendant's motion for summary judgment dismissing the complaint ( see TD Bank, N.A. v. 126 Spruce St., LLC, 117 A.D.3d 716, 717, 985 N.Y.S.2d 599;Postilio v. Deblasi, 116 A.D.3d 832, 983 N.Y.S.2d 432). MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.