CPLR R. 3212(f) “mere hope” is not enough

Defendant failed to raise a material issue of fact. Initially, we
reject defendant's assertion that Supreme Court erred in granting
plaintiffs summary judgment without permitting him to obtain further
discovery. Specifically, defendant sought to obtain the testimony of
Mayes to establish that Mayes had acquired the right-of-way by means of
abandonment or adverse possession, that she owned and used the
right-of-way exclusively and that she had conveyed exclusive title and
possession thereof to defendant ^[FN4]. "[I]f 'facts essential to justify opposition [to a motion for summary judgment] may exist but cannot then be stated'" (Mazzaferro v Barterama Corp., 218 AD2d 643, 643 [1995], quoting CPLR 3212 [f]), a trial court may deny a motion for summary judgment (see
CPLR 3212 [f]). However, "[t]he 'mere hope' that evidence sufficient to
defeat the motion may be uncovered during the discovery process is not
enough" (Mazzaferro v Barterama Corp., 218 AD2d at 643, quoting Jones v Gameray, 153 AD2d 550, 551 [1989].
[*3]

Here, Mayes' anticipated
testimony would not have controverted plaintiffs' establishment of the
common right-of-way. The deeds from Mayes' predecessors to Mayes
clearly provide that the right-of-way is to be held "in common with
others" and Mayes sold the lots to the parties subject to the
subdivision map. "[A]n easement created by reference to a filed map can
be extinguished only by the united action of all lot owners for whose
benefit the easement was created" (O'Hara v Wallace, 83 Misc 2d 383, 387 [1975], mod
52 AD2d 622 [1976]). Thus, under the circumstances here, Mayes could
not have acquired the easement by abandonment or adverse possession and
could not, alone, have conveyed the easement to defendant (see generally Will v Gates, 89 NY2d 778, 784-785, [1997]; O'Hara v Wallace,
83 Misc 2d at 386-387). Hence, neither evidence of her intent to do so,
nor defendant's understanding thereof, would be sufficient to overcome
plaintiffs' demonstrated entitlement to judgment as a matter of law,
and Supreme Court properly denied defendant's request for further
discovery before granting plaintiffs' motion for summary judgment.