CPLR R. 3212(f)

CPLR R. 3212(f) Facts unavailable to opposing party

Dalaba v City of Schenectady, 2009 NY Slip Op 02704 (App. Div., 3rd, 2009)

Finally, we discern no abuse of discretion in Supreme Court's decision
to grant plaintiff partial summary judgment on his Labor Law § 240
(1) claim without providing Edison with additional time within which to
complete discovery (see CPLR 3212 [f]). Edison offered no
explanation for its failure to depose plaintiff during the 10 months
since it filed its answer (see Steinborn v Himmel, 9 AD3d 531, 535 [2004]; cf. Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 20 AD3d 805,
806 [2005]). Also, in opposition to plaintiff's motion, Edison
submitted an affidavit of plaintiff's coworker who witnessed his fall,
undermining Edison's unsupported and speculative claim that plaintiff
"may have exclusive knowledge of facts which may defeat his [*3]motion and claims in general" (see Steinborn v Himmel, 9 AD3d at 535; Oliveira v County of Broome, 5 AD3d 898, 899 [2004]). Given Edison's inadequate showing, the grant of summary judgment to plaintiff was not premature.

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