Tyme v City of New York

2005 NYSlipOp 07524

October 11, 2005

Appellate Division, Second Department

Evelyn Tyme, Respondent, v City of New York et al., Defendants, and Arthur J. Schloerb, Appellant.

—[*1]In an action to recover damages for personal injuries, the defendant Arthur J. Schloerb appeals from an order of the Supreme Court, Queens County (Flug, J.), dated November 23, 2004, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him, with leave to renew upon completion of discovery.

Ordered that the order is affirmed, with costs.

On this record, the defendant Arthur J. Schloerb failed to establish his prima facie entitlement to judgment as a matter of law (see Obie v Catsimatidis, 10 AD3d 569 [2004]; Brown v O'Connor, 193 AD2d 1088 [1993]). Moreover, the Supreme Court correctly determined that granting summary judgment before the beginning of discovery would have been premature given the nature of the allegations made in the complaint (see CPLR 3212 [f]; Sportiello v City of New York, 6 AD3d 421, 422 [2004]). Florio, J.P., Crane, Fisher and Dillon, JJ., concur.