| Dushnick v Bellamy |
| 2014 NY Slip Op 05301 |
| Decided on July 16, 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 16, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
PLUMMER E. LOTT
SHERI S. ROMAN, JJ.
2013-03305
(Index No. 13/12)
v
Nehemiah Bellamy, appellant.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for appellant.
Russo Karl Widmaier & Cordano PLLC, Hauppauge, N.Y. (Joseph C. Tonetti of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered December 17, 2012, which denied his motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
CPLR 3212(f) provides that "where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied" (Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637 [internal quotation marks omitted]). "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793). Here, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised issues warranting further discovery. Accordingly, the Supreme Court properly denied, without prejudice to renewal upon the completion of discovery, the defendant's motion for summary judgment dismissing the complaint (see TD Bank, N.A. v 126 Spruce St., LLC, 117 AD3d 716, 717; Postilio v DeBlasi, 116 AD3d 832).
MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court