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Dismissal of a Summary Judgment Motion as “Premature” Requires an Evidentiary Showing that Material Information Is In the Exclusive Possession and Control of the Moving Party

In the course of a decision concerning an easement and land ownership, the Third Department explained the proof requirements for a claim that a summary judgment motion should be dismissed as “premature.” The essence of the “premature” argument is that material facts are within the exclusive knowledge and possession of the moving party. The argument, to succeed, must be supported by an evidentiary showing. Here defendant argued that plaintiff failed to respond to certain discovery demands, but did not take the next step and demonstrate how the failure to respond deprived him of material information in plaintiff’s exclusive possession:

… [T]here was no basis to deny plaintiff’s summary judgment motion as premature. “Although a motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party, the party opposing the motion must make an evidentiary showing to support that conclusion” … . Defendant pointed out that plaintiff failed to respond to certain discovery demands, but did not take the essential next step and show that her failure to do so deprived him of material information in her exclusive possession … . Bailey v Dimick, 2015 NY Slip Op 04704, 3rd Dept 6-4-15

 

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