Sepulveda v Cammeby's Mgt. Co., LLC

Sepulveda v Cammeby's Mgt. Co., LLC 2014 NY Slip Op 05530 Decided on July 30, 2014 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 July 30, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
SHERI S. ROMAN, JJ.
2013-10941
(Index No. 13416/11)

[*1]Yolanda Sepulveda, plaintiff,

v

Cammeby's Management Company, LLC, defendant third-party plaintiff-respondent; Executive Envelopes Co., Inc., third-party defendant-appellant.

Crisci, Weiser & McCarthy (Goldman & Grossman, New York, N.Y. [Jay S. Grossman], of counsel), for third-party defendant-appellant.

Harris, King & Fodera, New York, N.Y. (Dawn K. Gilbert of counsel), for defendant third-party plaintiff-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant, Executive Envelopes Co., Inc., appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated September 13, 2013, which denied, as premature, its motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with costs.

An award of summary judgment is premature at this stage of the action. CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion exist but cannot then be stated (see Wesolowski v St. Francis Hosp., 108 AD3d 525, 526; Jones v American Commerce Ins. Co., 92 AD3d 844, 845). This is especially so when the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion (see Schlichting v Elliquence Realty, LLC, 116 AD3d 689; Wesolowski v St. Francis Hosp., 108 AD3d at 526; Bond v DeMasco, 84 AD3d 1292, 1293; James v Aircraft Serv. Intl. Group, 84 AD3d 1026, 1027). Here, contrary to the appellant's contention, the Supreme Court did not improvidently exercise its discretion in denying, as premature, its motion for summary judgment dismissing the third-party complaint, since discovery, including depositions of the appellant and the defendant third-party plaintiff, may result in disclosure of evidence relevant to the causes of action asserted in the third-party complaint (see CPLR 3212[f]; Bank of America, N.A. v Hillside Cycles, Inc., 89 AD3d 653, 654; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Betz v N.Y.C. Premier Props., Inc., 38 AD3d 815, 816).

RIVERA, J.P., BALKIN, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court