CONIBER, JEFF v. CENTER POINT TRANSFER STATION, INC. ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 254 CA 10-02125 PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. JEFF CONIBER, DOING BUSINESS AS JEFF CONIBER TRUCKING, PLAINTIFF-RESPONDENT, V MEMORANDUM AND ORDER CENTER POINT TRANSFER STATION, INC., MATTHEW W. LOUGHRY AND KENNETH LOUGHRY, DEFENDANTS-APPELLANTS. E. ROBERT FUSSELL, P.C., LEROY (E. ROBERT FUSSELL OF COUNSEL), FOR DEFENDANTS-APPELLANTS. PIRRELLO, MISSAL, PERSONTE & FEDER, ROCHESTER (STEVEN E. FEDER OF COUNSEL), FOR PLAINTIFF-RESPONDENT. Appeal from an order of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered February 2, 2010 in a breach of contract action. The order, insofar as appealed from, denied the cross motion of defendants for summary judgment. It is hereby ORDERED that the order so appealed from is unanimously modified on the law by providing that the cross motion is denied without prejudice and as modified the order is affirmed without costs. Memorandum: Supreme Court properly concluded that it was premature to grant defendants’ cross motion for summary judgment dismissing the complaint at this stage of the litigation, in view of the limited discovery that has been conducted (see CPLR 3212 [f]; Sportiello v City of New York, 6 AD3d 421). We further conclude, however, that the court should have denied the cross motion without prejudice (see Hall v Rite Aid Corp., 37 AD3d 1160). We therefore modify the order accordingly. Entered: March 25, 2011 Patricia L. Morgan Clerk of the Court