CPLR R. 3211 Conversion “charted a summary judgment course”; CPLR R. 3212(f)

Pav-Co and Fehr argue initially that since they had not yet had the
opportunity to answer and conduct discovery, the Supreme Court should
not have addressed the merits of this dispute in the course of
resolving the parties' various motions and cross motions. The short
answer to this contention is that by arguing the merits of their
respective positions on the basis of factual affidavits and extensive
documentary evidence, the parties charted a summary judgment course and
[*8]cannot be heard to complain that the Supreme Court addressed their motions under the summary judgment standard (see Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502; Doukas v Doukas, 47 AD3d 753; Harris v Hallberg, 36 AD3d 857,
858). Moreover, the record reflects that all of the parties had ample
opportunity in the course of the extensive motion practice before the
Supreme Court to submit whatever evidentiary material they deemed
appropriate to support their substantive assertions with respect to the
issue of liability. As to their claimed need for discovery, these
defendants failed to satisfy their burden of offering "an evidentiary
basis to suggest that discovery may lead to relevant evidence" or that
"facts essential to justify opposition to the motion were exclusively
within the knowledge and control of the plaintiff" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Torres v American Bldg. Maintenance Co. of NY, 51 AD3d 905, 906; Alizio v Perpignano, 39 AD3d 781,
784). As we note below, however, upon remittal, the Supreme Court may,
in its discretion, deem additional discovery necessary with respect to
the issue of damages.

Northeast and Zorn argue that our dismissal of The Hamlet's previous
appeal from an order dated August 10, 2006, in which the Supreme Court
addressed the issue of conversion, by reason of The Hamlet's failure to
perfect that appeal, precludes our review of that issue on The Hamlet's
cross appeal from the order dated May 5, 2006, in which the same issue
was decided. That contention is incorrect. As a general rule, we do not
consider issues that were raised, or could have been raised, in a
previous appeal which was dismissed for lack of prosecution, although
we have inherent jurisdiction to do so (see Bray v Cox, 38 NY2d 350; DiGiaro v Agrawal, 41 AD3d 764,
765). Here, however, the opposite situation is presented. The order and
the judgment under review in Appeals No. 1 and 2 were entered in May
2006, while the dismissed appeal was from a subsequent order entered in
August 2006. While the better practice would have been to withdraw the
subsequent appeal, The Hamlet is not precluded from raising its
arguments with respect to the conversion cause of action on the present
cross appeal, which is taken from the earlier order and judgment (cf. Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 753-754).

The defendant did not submit an affidavit setting forth his
version of the occurrence. The motion was opposed solely by an
affirmation of counsel, which was insufficient to raise a triable issue
of fact (see Wesh v Laidlaw, 59 AD3d 534; Prince v Accardo, 54 AD3d 837, 838). The defendant failed [*2]to make an evidentiary showing that discovery would yield material and relevant evidence (see LKE Family Limited Partnership v Gillen Living Trust, 59 AD3d 602; Board of Managers of Park Regent Condominium v Park Regent Unit Owners Assoc., 58 AD3d 589; Phelan v Huntington Tri-Vil. Little League, Inc.,
57 AD3d 503, 505). The defendant's contentions regarding discovery were
mere expressions of hope and speculation that a deposition of the
plaintiff might disclose relevant information sufficient to defeat the
motion (see Brewster v Five Towns Health Care Realty Corp. 59 AD3d 483; Lauriello v Gallotta, 59 AD3d 497; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621).

In response to Sibbio's prima facie demonstration of his entitlement to judgment as a matter of law (see Clark v Davis, 52 AD3d 639; Lewis v Boyce, 31 AD3d 395; Shafqat v Blackman, 16 AD3d 574; Batista v Mohabir, 291 AD2d 365), the plaintiffs submitted evidence sufficient to raise a triable issue of fact (see Andujar v Wylong, 53 AD3d 465). Additionally, the motion was premature since substantial discovery remained outstanding (see CPLR 3212[f]; Patterson v Brennan, 292 AD2d 582).