Practice point: The plaintiff sued for injuries allegedly sustained when she tripped
and fell as a result of an alleged defect on a curb near a catch
basin/sewer in the defendant-Town. The Town moved for summary judgment dismissing the complaint on the ground that it did not own
the roadway and, therefore, had no duty to maintain the curb. In
opposition, the plaintiff contended that Highway
Law § 12(5) imposes a duty upon a town to maintain curbs on state-owned
highways that have been widened by the town, and to the Town's motion was
premature inasmuch as the Town failed to provide disclosure as to
whether it had widened the subject roadway.
The Appellate Division determined that, in opposing the motion, the
plaintiff demonstrated that the Town failed to disclose whether it
widened the subject roadway at the location of the occurrence, a fact
exclusively within the knowledge and control of the Town. Therefore,
the Supreme Court should have denied as premature the Town's motion, with leave to renew upon the completion of discovery.
Student note: A party who contends that a summary judgment motion is premature is
required to demonstrate that discovery might lead to relevant evidence
or that the facts essential to justify opposition to the motion were
exclusively within the knowledge and control of the movant, pursuant to CPLR 3212[f].
Case: Buto v. Town of Smithtown, NY Slip Op 06934 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Summary judgment for medical residents acting under the direction of the attending physicians.
