Pank v. Village of CanajohariePank v. Village of Canajoharie
Appeal from an order of the Supreme Court (Best, J.), entered January 26, 2000 in Montgomery County, which, inter alia, grаnted plaintiff’s cross motion to conduct additional discovery.
In 1995 defendant Village of Canajoharie constructed and commenced operation of a storage pаd for vegetable waste bio-solids on land owned by defendants Robert R. Harris and Kathleen Harris (hereinafter collectively referred to as Harris). The vegetable waste biosolids came from a baby food manufacturing facility in the Village of Canajoharie, Montgomery County. Thе Village adds nitrogen and a synthetic polymer to the bio-solids prior to transportation to the storage pad. Harris spread
In March 1999, Supreme Court granted plaintiffs’ application pursuant to CPLR 3120 for permission to enter upon defendant’s land and storage pad to conduct a tracer study designed to establish a ground wаter connection between the storage pad and the contamination of plаintiffs’ water well. Shortly after the tracer study was completed, the Village moved for summary judgment asserting that the storage pad was not responsible for the high nitrate levels which had been found in plaintiffs’ well. Harris cross-moved for summary judgment on the same basis. Plaintiffs opposed the motions and cross-moved for permission to conduct an additional tracer study, as well as a nоnparty deposition of an attorney from the Department of Environmental Conservation who had authored a letter which opined that the storage pad did not have significant impact on the surrounding environment. Supreme Court granted plaintiffs’ cross motion and held the resрective defendants’ motions for summary judgment in abeyance pending completion of thе additional discovery. Both the Village and Harris appeal from this order.
The dispositive issuе is whether Supreme Court abused its discretion in granting plaintiffs’ cross motion for additional discovery based on CPLR 3212 (f). Since we find no basis upon which to disturb Supreme Court’s exercise of discretion, we affirm.
A motion for summary judgment may be opposed with the claim that facts essential to justify oрposition may exist but that such material facts are within the exclusive knowledge and possеssion of the moving party (see, CPLR 3212 [f]). However, the opposing party must make an evidentiary showing supporting this conclusion, mere speculation or conjecture being insufficient (see, Scofield v Trustees of Union Coll.,
The evidence submitted by plaintiffs in the form of expert affidavits establishes “that facts essential to justify opposition may exist but cannot [now] be stated” (CPLR 3212 [f]). Clearly, the second tracеr study cannot be conducted without access to the storage pad and surrounding land which is exclusively in defendants’ control (see, Scofield v Trustees of Union Coll., supra). In our view, the record sufficiently establishes that plaintiffs’ request for a second tracer study is not predicated on dissatisfaction with the results of the first tracer study and does not constitute a simple fishing expedition predicated on surmise and hope that facts will be developed sufficient to defeat summary judgment. Accordingly, Supreme Court did nоt abuse its discretion in granting plaintiffs’ request for additional discovery and holding defendants’ motions fоr summary judgment in abeyance pending the completion of that discovery.
Mercure, J. P., Peters, Carpinello and Graffeo, JJ., concur. Ordered that the order is affirmed, with costs. ,
Notes
Harris sold the land upon which the storage pad is located to the Village in October 1996.