Avraham v. Allied Realty Corp.

Jun 14, 2004
Versions:8 A.D.3d 1079
778 N.Y.S.2d 648
2004 N.Y. App. Div. LEXIS 8120

Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (Charles T. Major, J.), entered February 4, 2003, in an action to recover damages for breach of contract. The order and judgment granted defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Plaintiffs’ contention that the motion was premature “is raised for the first time on appeal and therefore is not properly before us” (Bradley v Benchmark Mgt. Corp., 294 AD2d 879, 880 [2002]; see Connors v Wilmorite, Inc., 225 AD2d 1040 [1996]). In any event, plaintiffs “failed to show that ‘facts essential to justify opposition may exist but [could not] then be stated’ (CPLR 3212 [f]) and that [plaintiffs] require[ ] the discovery of facts that are within the exclusive knowledge of another party” (Wittkopp v ADF Constr. Corp., 254 AD2d 775, 776 [1998]; see Franklin v Dormitory Auth. of State of N.Y., 291 AD2d 854 [2002]; Santangelo v Fluor Constructors Intl., 266 AD2d 893, 894 [1999]). Plaintiffs contend that they should have been allowed to depose certain nonparties. Plaintiffs, however, failed to establish that they could not have deposed those nonparties during the almost one year between the commencement of the action and defendant’s motion herein (see Santangelo, 266 AD2d at 894). Indeed, plaintiffs were aware almost four months prior to defendant’s motion that defendant intended to move for summary judgment, yet plaintiffs failed to conduct any discovery in anticipation of opposing that motion. Plaintiffs thus “failed to ascertain the facts due to [their] own voluntary inaction” (Twining, Nemia & Hill v Read Mem. Hosp., 89 AD2d 432, 434 [1982]; see Franklin, 291 AD2d at 854-855). Present—Wisner, J.P., Hurlbutt, Gorski, Martoche and Hayes, JJ.