Opinion
2014-08-20
Shameka WORLEY, et al., appellants, v. SAFEMOVE RENTAL, et al., respondents.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen of counsel), for appellants. Nicoletti Gonson Spinner LLP, New York, N.Y. (Kevin F. Pinter and Gary Greenman of counsel), for respondent Safemove Rental.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen of counsel), for appellants. Nicoletti Gonson Spinner LLP, New York, N.Y. (Kevin F. Pinter and Gary Greenman of counsel), for respondent Safemove Rental.
Goldberg Segalla, LLP, White Plains, N.Y. (William T. O'Connell of counsel), for respondent Jarrid Meyer.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Marjorie E. Bornes of counsel), for respondent John Williams.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated September 27, 2013, as denied, as premature, their motion for summary judgment on the issue of liability, with leave to renew after the completion of discovery, and denied the cross motion of the defendant John Williams for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.
ORDERED that the appeal from so much of the order as denied the cross motion of the defendant John Williams for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is dismissed, as the plaintiffs are not aggrieved by that portion of the order ( seeCPLR 5511); and it is further,
ORDERED that the order is affirmed insofar as reviewed, with costs.
Contrary to the plaintiffs' contention, the Supreme Court properly denied, as premature, their motion for summary judgment on the issue of liability, with leave to renew after the completion of discovery. The plaintiffs moved for summary judgment on the issue of liability prior to the parties' depositions, including depositions of eyewitnesses identified in the police accident report. Moreover, the defendant Safemove Rental submitted, inter alia, an affidavit which suggested that discovery might lead to relevant evidence pertaining to the circumstances of the subject accident, or “that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party” ( Suero–Sosa v. Cardona, 112 A.D.3d 706, 708, 977 N.Y.S.2d 61). Under these circumstances, the opposing parties did not have a reasonable opportunity to conduct discovery ( see CPLR 3212[f]; Bond v. DeMasco, 84 A.D.3d 1292, 1293, 923 N.Y.S.2d 902;Gardner v. Cason, Inc., 82 A.D.3d 930, 931–932, 918 N.Y.S.2d 769;cf. Jones v. American Commerce Ins. Co., 92 A.D.3d 844, 845, 939 N.Y.S.2d 115;cf. also Suero–Sosa v. Cardona, 112 A.D.3d at 708, 977 N.Y.S.2d 61;Anzel v. Pistorino, 105 A.D.3d 784, 962 N.Y.S.2d 700). SKELOS, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.