Opinion
2014-07-30
Yolanda SEPULVEDA, plaintiff, v. CAMMEBY'S MANAGEMENT COMPANY, LLC, defendant third-party plaintiff-respondent; Executive Envelopes Co., Inc., third-party defendant-appellant.
Crisci, Weiser & McCarthy (Goldman & Grossman, New York, N.Y. [Jay S. Grossman], of counsel), for third-party defendant-appellant. Harris, King & Fodera, New York, N.Y. (Dawn K. Gilbert of counsel), for defendant third-party plaintiff-respondent.
Crisci, Weiser & McCarthy (Goldman & Grossman, New York, N.Y. [Jay S. Grossman], of counsel), for third-party defendant-appellant. Harris, King & Fodera, New York, N.Y. (Dawn K. Gilbert of counsel), for defendant third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendant, Executive Envelopes Co., Inc., appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated September 13, 2013, which denied, as premature, its motion for summary judgment dismissing the third-party complaint.
ORDERED that the order is affirmed, with costs.
An award of summary judgment is premature at this stage of the action. CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion exist but cannot then be stated ( see Wesolowski v. St. Francis Hosp., 108 A.D.3d 525, 526, 968 N.Y.S.2d 181;Jones v. American Commerce Ins. Co., 92 A.D.3d 844, 845, 939 N.Y.S.2d 115). This is especially so when the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion ( see Schlichting v. Elliquence Realty, LLC, 116 A.D.3d 689, 983 N.Y.S.2d 291;Wesolowski v. St. Francis Hosp., 108 A.D.3d at 526, 968 N.Y.S.2d 181;Bond v. DeMasco, 84 A.D.3d 1292, 1293, 923 N.Y.S.2d 902;James v. Aircraft Serv. Intl. Group, 84 A.D.3d 1026, 1027, 924 N.Y.S.2d 114). Here, contrary to the appellant's contention, the Supreme Court did not improvidently exercise its discretion in denying, as premature, its motion for summary judgment dismissing the third-party complaint, since discovery, including depositions of the appellant and the defendant third-party plaintiff, may result in disclosure of evidence relevant to the causes of action asserted in the third-party complaint ( see CPLR 3212[f]; Bank of America, N.A. v. Hillside Cycles, Inc., 89 A.D.3d 653, 654, 932 N.Y.S.2d 128;Aurora Loan Servs., LLC v. LaMattina & Assoc., Inc., 59 A.D.3d 578, 872 N.Y.S.2d 724; Betz v. N.Y.C. Premier Props., Inc., 38 A.D.3d 815, 816, 833 N.Y.S.2d 153). RIVERA, J.P., BALKIN, LEVENTHAL and ROMAN, JJ., concur.