| Matter of Fasciglione |
| 2010 NY Slip Op 03926 [73 AD3d 769] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Vito Fasciglione, Deceased. AngeloFasciglione, Appellant; Karla Fasciglione, Respondent. |
—[*1] Enea, Scanlan & Sirignano, LLP, White Plains, N.Y. (George A. Sirignano, Jr., of counsel),for respondent.
In a contested probate proceeding, the proponent appeals from an order of the Surrogate'sCourt, Westchester County (Scarpino, S.), dated July 24, 2009, which denied as premature,without prejudice to renew, his motion for summary judgment dismissing the objections andadmitting the decedent's will to probate, and for the imposition of costs and sanctions upon theobjectant.
Ordered that the order is affirmed, with costs payable by the estate.
A party opposing summary judgment is entitled to obtain further discovery when it appearsthat facts supporting the opposing party's position may exist but cannot then be stated (seeCPLR 3212 [f]; Juseinoski v NewYork Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637 [2006]; Urcan v Cocarelli,234 AD2d 537 [1996]). At the time the proponent filed his motion, inter alia, for summaryjudgment, the court-ordered period for the completion of depositions had not yet expired, and theobjectant had not had the opportunity to complete her depositions of nonparty witnesses and hadnot received all documents requested from the proponent. Under the circumstances of this case,the Surrogate's Court properly denied the proponent's motion as premature, without prejudice torenewal (see Groves v Land's End Hous. Co., 80 NY2d 978 [1992]; Juseinoski vNew York Hosp. Med. Ctr. of Queens, 29 AD3d at 637-638; Matter of Jacinto, 172AD2d 664 [1991]).
The proponent's remaining contentions are without merit. Prudenti, P.J., Fisher, Roman andSgroi, JJ., concur.