Panasia Estates, Inc. v Hudson Ins. Co.

Panasia Estates, Inc. v Hudson Ins. Co. 2011 NY Slip Op 02805 Decided on April 7, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 7, 2011
Tom, J.P., Saxe, DeGrasse, Freedman, Abdus-Salaam, JJ.
4736 602472/05

[*1]Panasia Estates, Inc., Plaintiff-Appellant,

v

Hudson Insurance Company, Defendant-Respondent, UTC Risk Management Services Inc., Defendant.



 
Peckar & Ambramson, P.C., New York (Michael S. Zicherman
of counsel), for appellant.
White Fleischner & Fino, LLP, New York (Gil M. Coogler of
counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 30, 2010, which denied without prejudice plaintiff's motion for partial summary judgment, unanimously reversed, on the law, without costs, the motion restored to the calendar and the matter remanded for further proceedings, including disposition of the motion on the merits, if possible, following the parties' submission of papers.

The court erred in denying plaintiff's properly filed summary judgment motion, absent the submission by defendant of an affidavit in opposition to the motion showing that facts essential to justify opposition may exist but cannot then be stated (see CPLR 3212 [f]; Miller v Icon Group LLC, 77 AD3d 586 [2010]; A & E Stores, Inc. v U.S. Team, Inc., 63 AD3d 486 [2009]). Indeed, defendant failed to make any evidentiary showing that the completion of outstanding discovery will yield material and relevant evidence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 7, 2011

CLERK