Bogni v. Hurlbut , 376 N.Y.S.2d 420 ( 1975 )

—Order unanimously affirmed, with costs, without prejudice, in accordance with the following memorandum: Defendants’ motion for summary judgment was served with their answer. Plaintiff complains that he has not had an opportunity to conduct examinations before trial to obtain evidence to establish that defendants bought a business opportunity in Florida instead of real estate (see Dodge v Richmond, 5 AD2d 593; Schindler v Florida Real Estate Comm., 144 So 2d 862 [Fla]). We think that plaintiff should have such opportunity. Our affirmance is without prejudice to defendants, however, to renew their motion after plaintiff has had a reasonable opportunity to complete his examinations before trial. (Appeal from order of Monroe Supreme Court in action to recover for services performed.) Present— Marsh, P. J., Moule, Cardamone, Goldman and Witmer, JJ.