Taylor v Krebs

Taylor v Krebs 2011 NY Slip Op 08930 Decided on December 6, 2011 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 December 6, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
ARIEL E. BELEN
SHERI S. ROMAN, JJ.
2010-10820
(Index No. 27878/09)

[*1]Temple L. Taylor, respondent,

v

David R. Krebs, appellant.




Cerussi & Spring, White Plains, N.Y. (Richard D. Bentzen of
counsel), for appellant.
Kenneth A. LaBarca, New York, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered September 30, 2010, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied, without prejudice to renewal upon the completion of discovery.

Under the facts of this case, it was premature for the Supreme Court to grant the plaintiff's motion for summary judgment on the issue of liability prior to the exchange of any discovery (see CPLR 3212[f]; Babcock v Roche, 262 AD2d 512, 512-513; McNally v Fitzgerald, 260 AD2d 355, 356; Hentschel v Campbell Carpet Servs., 256 AD2d 500, 500-501; Barletta v Lewis, 237 AD2d 238). Accordingly, the motion should have been denied, without prejudice to renewal upon the completion of discovery.

In light of our determination, we need not reach the defendant's remaining contentions.
RIVERA, J.P., LEVENTHAL, BELEN and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court