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Summary Judgment Premature—Disclosure Necessary

In finding Supreme Court should have treated defendant’s motion, which was made after issue was joined, as a motion for summary judgment (not a motion to dismiss), the Second Department determined the motion should not have been granted because facts essential to oppose the motion may exist but could not yet be stated:

An award of summary judgment would be premature at this stage of the case. 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” (CPLR 3212[f];…). ” This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'”…. Here, the defendant’s motion to dismiss the complaint was made prior to the parties conducting depositions. Since the plaintiffs had no personal knowledge of the relevant facts, they should be afforded the opportunity to conduct discovery, including depositions of the defendant’s employees and other witnesses that were present during the incident complained of….  Wesolowski v St Francis Hosp, 2013 NY Slip Op 05061, 2nd Dept 7-3-13

 

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