| Evangelista v Kambanis |
| 2010 NY Slip Op 05726 [74 AD3d 1278] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Antonia Evangelista, Respondent, v Emanuel Kambanis etal., Appellants. |
—[*1]
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Lane, J.), entered December 11, 2009, which denied, aspremature, their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, without costs or disbursements.
"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"(Matter of Fasciglione, 73 AD3d 769 [2010]; see CPLR 3212 [f]; Rodriguezv DeStefano, 72 AD3d 926 [2010]). Here, at the time the defendant landowners moved forsummary judgment, they had not been deposed. Moreover, it appears that informationconcerning whether they created the alleged dangerous condition on the sidewalk abutting theirproperty which caused the plaintiff's accident, or enjoyed a special use of the sidewalk whichgave rise to the dangerous condition, may be within their exclusive knowledge (see Adler vCity of New York, 52 AD3d 549, 549-550 [2008]). Under these circumstances, the SupremeCourt did not improvidently exercise its discretion in denying, as premature, the defendants'motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025 [2010]; Rodriguez vDeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936 [2009]). Fisher,J.P., Lott, Austin and Sgroi, JJ., concur.