Pre-Deposition Motion for Summary Judgment Should Not Have Been Granted

The Second Department determined a pre-deposition motion for summary judgment was premature and should not have been granted:

“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” … . This is especially so where the motion for summary judgment was made prior to the parties conducting depositions … .Here, an award of summary judgment would be premature at this stage of the action. The plaintiff’s motion for summary judgment was made prior to the deposition of the plaintiff. In light of the fact that the plaintiff was the sole witness to the accident, and that his account of the accident has been placed in issue, the defendant should have been afforded the opportunity to conduct his deposition … . Schlichting v Elliquence Realty LLC, 2014 NY Slip Op 02281, 2nd Dept 4-2-14