Lewis v. Agency Rent-A-Car , 562 N.Y.S.2d 558 ( 1990 )

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Leviss, J.), dated May 1, 1989, which denied his motion for summary judgment.

Ordered that the order is affirmed, with costs; and it is further,

Ordered that the parties are directed to appear in this court on January 16, 1991, at 12:00 noon to be heard upon the issue of the imposition of appropriate sanctions or costs against the attorney for the appellant, if any, pursuant to 22 NYCRR 130-1.1.

A motion for summary judgment must be denied if the facts upon which the motion is predicated are clearly not within the knowledge of the nonmoving party (see, Rowden v National Car Rental, 36 AD2d 762; De France v Oestrike, 8 AD2d 735). In this matter, since the defendant Agency Rent-A-Car was not afforded an opportunity to ascertain any of the essential facts, summary judgment would be a wholly inappropriate remedy.

The motion, having been made before any discovery was conducted, reveals that the most basic issues of fact remain unanswered. The plaintiff made the motion without even complying with outstanding discovery demands. For example, it is not even clear whether the plaintiff was a driver or passenger in one of the vehicles involved in this intersection accident, how the accident happened or whether or not the plaintiff was even injured. The motion should not have been made when it was, if at all, and not only was the motion properly denied but the appeal from that denial is completely frivolous. Accordingly, the parties are directed to appear before this court upon the issue of the imposition of appropriate sanctions or costs, if any, pursuant to 22 NYCRR 130-1.1. Bracken, J. P., Lawrence, Fiber, Harwood and Rosenblatt, JJ., concur.