Salameh v Yarkovski

Salameh v Yarkovski 2017 NY Slip Op 08547 Decided on December 6, 2017 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, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
SHERI S. ROMAN
ROBERT J. MILLER
LINDA CHRISTOPHER, JJ.
2016-08472
(Index No. 504141/16)

[*1]Chaim Victor Salameh, et al., respondents,

v

Igor Yarkovski, et al., defendants, Cab East, LLC, appellant.

Morris Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant.

Hannum Feretic Prendergast & Merlino, LLC, New York, NY (Michael J. White and Alexander Johnson of counsel), for defendant Igor Yarkovski.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Cab East, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated August 3, 2016, as denied, as premature, its motion for summary judgment dismissing the complaint insofar as asserted against it, with leave to renew after the completion of discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Martino v Midtown Trackage Ventures, LLC, 147 AD3d 1040, 1040; Okula v City of New York, 147 AD3d 967, 968; Brea v Salvatore, 130 AD3d 956, 956; Malester v Rampil, 118 AD3d 855, 856). A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated (see CPLR 3212[f]; Ingram v Bay Ridge Auto. Mgt. Corp., 145 AD3d 672, 672-673; Nicholson v Bader, 83 AD3d 802, 802). "A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" (Antonyshyn v Tishman Constr. Corp., 153 AD3d 1308, 1310 [internal quotation marks omitted]; see Rungoo v Leary, 110 AD3d 781, 783; Cajas-Romero v Ward, 106 AD3d 850, 852).

Here, the defendant Cab East, LLC (hereinafter Cab), moved for summary judgment dismissing the complaint insofar as asserted against it less than two months after the plaintiffs commenced this action, prior to the exchange of any discovery. Furthermore, in this action to recover damages for personal injuries arising from a motor vehicle accident, the submissions in opposition to Cab's motion sufficiently established that facts may exist that would demonstrate that Cab owned one of the vehicles involved in the accident. Thus, an opportunity should be provided [*2]for the parties to conduct discovery which may result in disclosure of relevant information. Accordingly, the Supreme Court properly denied, as premature, Cab's motion for summary judgment dismissing the complaint insofar as asserted against it, with leave to renew upon the completion of discovery (see CPLR 3212[f]; Martino v Midtown Trackage Ventures, LLC, 147 AD3d at 1040; Ingram v Bay Ridge Auto. Mgt. Corp., 145 AD3d at 673; Brea v Salvatore, 130 AD3d at 957; Nicholson v Bader, 83 AD3d at 802; cf. Rungoo v Leary, 110 AD3d at 783; Cajas-Romero v Ward, 106 AD3d at 852).

ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court