CPLR 3212(f); 3126; staged accident

CPLR 3212(f)

CPLR 3126

Johnson v Richardson, 2014 NY Slip Op 05956 [2nd Dept. 2014]

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (James v Aircraft Serv. Intl. Group, 84 AD3d 1026, 1027 [internal quotation marks omitted]; see CPLR 3212[f]; Wesolowski v St. Francis Hosp., 108 AD3d 525, 526; Jones v American Commerce Ins. Co., 92 AD3d 844, 845; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793; see Wesolowski v St. Francis Hosp., 108 AD3d at 526; James v Aircraft Serv. Intl. Group, 84 AD3d at 1027).

Here, the plaintiffs' motion for leave to reargue was made prior to the parties conducting depositions. U-Haul asserts that the accident was "staged" by the plaintiffs and Richardson, and, thus, U-Haul was not liable for negligence. Since U-Haul had no personal knowledge of the relevant facts, it should be afforded the opportunity to conduct discovery, including depositions of the plaintiffs and the defendant Richardson. Accordingly, it was premature to award summary judgment at this stage of the action (see Wesolowski v St. Francis Hosp., 108 AD3d at 526; Jones v American Commerce Ins. Co., 92 AD3d at 845; Gardner v Cason, Inc., 82 AD3d 930, 931-932; Adler v City of New York, 52 AD3d 549, 549-550).

 

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