April 30, 2007

Faced with a summary judgment motion, the nonmoving party is entitled to discovery if potentially useful facts are exclusively within the knowledge and control of the moving party, or so said the Second Department, in Banks v. Department of Education, decided on April 24, 2007. CPLR 3212(f) gives the nonmoving party a reasonable opportunity to develop the record through discovery. Until that's done, the motion to dismiss is premature.