Wipf v. Lemle

Order, Supreme Court, New York County (Edward Lehner, J.), entered March 3, 1999, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs cross motion for further discovery, unanimously modified, on the law, to deny the motion with respect to plaintiffs claim that her accident was caused by defendant’s negligent repair of the sidewalk and to reinstate the complaint to that extent, and otherwise affirmed, without costs.

Although the motion court properly granted defendant summary judgment dismissing plaintiffs claim to the extent that such claim was premised on defendant’s alleged special use of the property (see, MacLeod v Pete’s Tavern, 87 NY2d 912), defendant’s motion did not address plaintiffs alternative claim that her accident was caused by defendant’s negligent repair of the sidewalk. Because defendant failed to make a prima facie showing of entitlement to judgment as a matter of law on this issue, the court erred in dismissing the complaint in its entirety (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The motion court properly exercised its discretion in denying plaintiffs cross motion for further discovery since plaintiff, during the two-and-a-half years between her action’s commencement and her cross motion, had already had ample opportunity to conduct discovery and, in any event, the materials sought are not relevant to proving plaintiffs surviving claim. Concur — Rosenberger, J. P., Nardelli, Andrias, Saxe and Buckley, JJ.