Practice point: The Appellate Division modified the motion court's denial to specify that the motion was premature in this action where plaintiff alleged injuries in a fall on a sidewalk adjacent to real property. Plaintiff sued the owner and the tenant, and, before the owner appeared or submitted a responsive pleading, the tenant moved for summary judgment, arguing that it had no duty to maintain the sidewalk.
In addition to the fact that the motion was made before the issue was joined by the owner, the Appellate Division noted that plaintiff demonstrated that discovery, including a deposition of
the owner, may result in disclosure of evidence relevant to the issue of
whether the tenant had a duty to maintain the sidewalk. Plaintiff also demonstrated that facts essential to its opposition to the motion were exclusively within
the knowledge and control of the tenant and the owner.
Student note: A motion for summary judgment may be denied as premature where it
appears that the facts essential to oppose the motion exist but cannot
then be stated, pursuant to CPLR 3212[f]. In opposing, the non-movant must demonstrate that discovery might lead to relevant evidence
or the facts essential to justify opposition to the motion were
exclusively within the knowledge and control of the movant.
Case: Bonilla v. Bangert's Flowers, NY Slip Op 07235 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Leave to serve a late notice of claim.
