Ruiz v Torres

Ruiz v Torres 2016 NY Slip Op 02069 Decided on March 23, 2016 Appellate Division, Second 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 March 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
JEFFREY A. COHEN
BETSY BARROS, JJ.
2015-06371
(Index No. 14899/11)

[*1]Benito Ruiz, et al., appellants,

v

Manuel Torres, etc., respondent, et al., defendants.

David W. Graber, Great Neck, NY, for appellants.

The Law Offices of Jay S. Markowitz, P.C., Fresh Meadows, NY, for respondent.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to determine claims to certain real property and for a judgment declaring that the plaintiffs are the owners of the subject real property by adverse possession, the plaintiffs appeal from an order of the Supreme Court, Kings County (Martin, J.), dated October 6, 2014, which denied, as premature, their motion, inter alia, for summary judgment on the complaint, with leave to renew upon the completion of discovery.

ORDERED that the order is affirmed, with costs.

Prior to the exchange of any discovery, the plaintiffs moved, inter alia, for summary judgment on their complaint seeking a judgment declaring that they acquired title to the subject real property by adverse possession. In opposition to the plaintiffs' prima facie showing of their entitlement to judgment as a matter of law, the defendant Manuel Torres submitted his own affidavit, which demonstrated that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiffs and, therefore, could not then be stated (see CPLR 3212[f]; James v Aircraft Serv. Intl. Group, 84 AD3d 1026, 1027).

Accordingly, the Supreme Court properly denied the plaintiffs' motion as premature, with leave to renew upon the completion of discovery (see James v Aircraft Serv. Intl. Group, 84 AD3d at 1027; Matter of Fasciglione, 73 AD3d 769, 770; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578, 578).

RIVERA, J.P., BALKIN, COHEN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court