Edward Matuszak v B.R.K. Brands, Inc.

Matuszak v B.R.K. Brands, Inc. 2005 NY Slip Op 09077 [23 AD3d 628] November 28, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Edward Matuszak et al., Appellants,
v
B.R.K. Brands, Inc., Respondent.

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In an action to recover for damage to property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated August 12, 2004, which granted the defendant's motion for summary judgment dismissing the complaint, and denied their cross motion to compel discovery pursuant to CPLR 3212 (f).

Ordered that the order is affirmed, with costs.

The defendant established its prima facie entitlement to summary judgment by proffering, inter alia, documentary evidence that the subject fire was not caused by its rechargeable First Alert flashlight, but by a clothes dryer. In opposition, the plaintiffs failed to raise a triable issue of fact.

Moreover, the plaintiffs certified this matter as trial ready, filed a note of issue, voiced no objection to the manner in which discovery was proceeding, and did not make any application to compel disclosure until they cross-moved in opposition to the defendant's summary judgment motion. In such instances, the law is well settled that a claim of incomplete discovery will not defeat a prima facie showing of entitlement to summary judgment (see Guarino v Mohawk Containers Co., 59 NY2d 753 [1983]; Kraeling v Leading Edge Elec., 2 AD3d 789 [2003]; Federoff v Camperlengo, 215 [*2]AD2d 806 [1995]; Kracker v Spartan Chem. Co., 183 AD2d 810 [1992]; Dabbs v City of Peekskill, 178 AD2d 577 [1991]; Hecht v Vanderbilt Assoc., 141 AD2d 696 [1988]).

The plaintiffs' remaining contentions are without merit. Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.