Practice point: Pursuant to CPLR 3212(f), a trial court has the discretion to deny a motion for summary judgment or to order a continuance if facts essential to an opposition may exist, but cannot then be stated.
Practitioners should note that there must be a likelihood of discovery leading to such evidence, and the party opposing the motion must allege the existence of proof in admissible form which presents a triable issue of fact or an acceptable excuse for the absence of first-hand knowledge.
Case: Desena v. City of New York, NY Slip Op 06160 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
