Worley v. Safemove Rental

Worley v Safemove Rental (2014 NY Slip Op 05862)

Worley v Safemove Rental

2014 NY Slip Op 05862

Decided on August 20, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 20, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.

2014-01193
(Index No. 24417/11)

[*1]Shameka Worley, et al., appellants,

v

Safemove Rental, et al., respondents.

Subin Associates, LLP, New York, N.Y. (Robert J. Eisen of counsel), for appellants.

Nicoletti Gonson Spinner LLP, New York, N.Y. (Kevin F. Pinter and Gary Greenman of counsel), for respondent Safemove Rental.

Goldberg Segalla, LLP, White Plains, N.Y. (William T. O'Connell of counsel), for respondent Jarrid Meyer.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Marjorie E. Bornes of counsel), for respondent John Williams.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated September 27, 2013, as denied, as premature, their motion for summary judgment on the issue of liability, with leave to renew after the completion of discovery, and denied the cross motion of the defendant John Williams for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the appeal from so much of the order as denied the cross motion of the defendant John Williams for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is dismissed, as the plaintiffs are not aggrieved by that portion of the order (see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as reviewed, with costs.

Contrary to the plaintiffs' contention, the Supreme Court properly denied, as premature, their motion for summary judgment on the issue of liability, with leave to renew after the completion of discovery. The plaintiffs moved for summary judgment on the issue of liability prior to the parties' depositions, including depositions of eyewitnesses identified in the police accident report. Moreover, the defendant Safemove Rental submitted, inter alia, an affidavit which suggested that discovery might lead to relevant evidence pertaining to the circumstances of the subject accident, or "that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party" (Suero-Sosa v Cardona, 112 AD3d 706, 708). Under these circumstances, the opposing parties did not have a reasonable opportunity to conduct discovery (see [*2]CPLR 3212[f]; Bond v DeMasco, 84 AD3d 1292, 1293; Gardner v Cason, Inc., 82 AD3d 930, 931-932; cf. Jones v American Commerce Ins. Co., 92 AD3d 844, 845; cf. also Suero-Sosa v Cardona, 112 AD3d at 708; Anzel v Pistorino, 105 AD3d 784).

SKELOS, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court