| Voluto Ventures, LLC v Jenkens & Gilchrist Parker ChapinLLP |
| 2007 NY Slip Op 08017 [44 AD3d 557] |
| October 25, 2007 |
| Appellate Division, First Department |
| Voluto Ventures, LLC, Respondent, v Jenkens & GilchristParker Chapin LLP, Appellant. |
—[*1] Garvey Schubert Barer, New York City (Andrew J. Goodman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 5, 2007,awarding plaintiff the principal sum of $200,000, pursuant to a revised order, same court andJustice, entered on or about May 21, 2007, which granted plaintiff summary judgment,unanimously affirmed, with costs. Appeal from orders, same court and Justice, entered on orabout May 1 and 27, 2007, unanimously dismissed, without costs.
Defendant failed to contradict, through admissible evidence, the basic contention that it didnot have the authority to send the money held in its escrow account on plaintiff's behalf to anyentity other than plaintiff. We are not persuaded by defendant's argument that its lack ofdiscovery requires denial of the motion as premature. To avail oneself of CPLR 3212 (f) to defeator delay summary judgment, a party must demonstrate that the needed proof is within theexclusive knowledge of the moving party (Berkeley Fed. Bank & Trust v 229 E. 53rd St.Assoc., 242 AD2d 489 [1997]), that the claims in opposition are supported by somethingother than mere hope or conjecture (Neryaev v Solon, 6 AD3d 510 [2004]), and that the party has atleast made some attempt to discover facts at variance with the moving party's proof (see Cruzv Otis El. Co., 238 AD2d 540 [1997]). Defendant has failed to demonstrate that necessarydiligence.
We have considered defendant's remaining arguments and find them unavailing.Concur—Tom, J.P., Saxe, Nardelli, Sweeny and Catterson, JJ. [See 2007 NY SlipOp 31116(U).]