Chmelovsky v. Country Club Homes, Inc.

May 1, 2013
Versions:106 A.D.3d 684
964 N.Y.S.2d 245

In an action to recover damages for personal injuries, the third-party defendants appeal from so much of an order of the Supreme Court, Putnam County (Nicolai, J.), dated March 30, 2012, as denied, as premature, that branch of their motion which was for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied, as premature, that branch of the third-party defendants’ motion which was for summary judgment dismissing the third-party complaint. “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” (Matter of Fasciglione, 73 AD3d 769, 770 [2010]; see CPLR 3212 [f]; Evangelista v Kambanis, 74 AD3d 1278 [2010]; Rodriguez v DeStefano, 72 AD3d 926 [2010]). At the time when the third-party defendants’ motion was made, no discovery had taken place. The third-party plaintiffs raised issues in support of their position that required discovery. Contrary to the third-party defendants’ contentions, under these circumstances, the Supreme Court did not improvidently exercise its discretion in denying, as premature, their motion for summary judgment (see CPLR 3212 [f]; Evangelista v Kambanis, 74 AD3d 1278 [2010]; Matter of Fasciglione, 73 AD3d 769 [2010]; Gruenfeld v City of New Rochelle, 72 AD3d 1025 [2010]; Rodriguez v DeStefano, 72 AD3d 926 [2010]; Harvey v Nealis, 61 AD3d 935 [2009]).

The third-party defendants’ remaining contentions either are without merit or need not be addressed in light of our determination. Dillon, J.P., Angiolillo, Austin and Hinds-Radix, JJ., concur.