| Dietrich v Grandsire |
| 2011 NY Slip Op 03541 [83 AD3d 994] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Jane Dietrich, Appellant, v Patricia R. Grandsire et al.,Respondents. |
—[*1] Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Iannacci, J.), entered November 17, 2010, which denied hermotion for summary judgment on the issue of liability, without prejudice to renewal "aftersufficient discovery has been exchanged."
Ordered that the order is affirmed, with costs.
"Under CPLR 3212 (f),'where facts essential to justify opposition to a motion for summaryjudgment are exclusively within the knowledge and control of the movant, summary judgmentmay be denied . . . . This is especially so where the opposing party has not had areasonable opportunity for disclosure prior to the making of the motion' " (Juseinoski v New York Hosp. Med. Ctr. ofQueens, 29 AD3d 636, 637 [2006], quoting Baron v Incorporated Vil. ofFreeport, 143 AD2d 792, 792-793 [1988]; see CPLR 3212 [f]; Aurora Loan Servs., LLC v LaMattina &Assoc., Inc., 59 AD3d 578 [2009]).
Here, the plaintiff moved for summary judgment on the issue of liability prior to the parties'depositions. The defendants did not have an adequate opportunity to conduct discovery (see Amico v Melville Volunteer Fire Co.,Inc., 39 AD3d 784, 785 [2007]). Moreover, to the extent that the defendants allege thatthe plaintiff may be comparatively negligent, "facts essential to justify opposition to the motionare within the exclusive knowledge of the plaintiff and may be revealed through pretrialdiscovery" (Barletta v Lewis, 237 AD2d 238, 238 [1997]). Accordingly, the SupremeCourt properly denied the plaintiff's motion for summary judgment on the issue of liability,without prejudice to renewal. Dillon, J.P., Florio, Balkin and Eng, JJ., concur.