| Chmelovsky v Country Club Homes, Inc. |
| 2013 NY Slip Op 03054 [106 AD3d 684] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Rastislar Chmelovsky, Plaintiff, v Country ClubHomes, Inc., Defendant, and SK Home Improvement, LLC, et al.,Defendants/Third-Party Plaintiffs-Respondents. Igor Vcelarik et al., Third-PartyDefendants-Appellants. |
—[*1] Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for defendants/third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, the third-party defendantsappeal from so much of an order of the Supreme Court, Putnam County (Nicolai, J.),dated March 30, 2012, as denied, as premature, that branch of their motion which was forsummary judgment dismissing the third-party complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied, as premature, that branch of the third-partydefendants' motion which was for summary judgment dismissing the third-partycomplaint. "A party opposing summary judgment is entitled to obtain further discoverywhen it appears that facts supporting the opposing party's position may exist but cannotthen be stated" (Matter ofFasciglione, 73 AD3d 769, 770 [2010]; see CPLR 3212 [f]; Evangelista v Kambanis, 74AD3d 1278 [2010]; Rodriguez v DeStefano, 72 AD3d 926 [2010]). At the timewhen the third-party defendants' motion was made, no discovery had taken place. Thethird-party plaintiffs raised issues in support of their position that required discovery.Contrary to the third-party defendants' contentions, under these circumstances, theSupreme Court did not improvidently exercise its discretion in denying, as premature,their motion for summary judgment (see CPLR 3212 [f]; Evangelista v Kambanis, 74AD3d 1278 [2010]; Matterof Fasciglione, 73 AD3d 769 [2010]; Gruenfeld v City of New Rochelle, 72 AD3d 1025 [2010];Rodriguez v DeStefano, 72AD3d 926 [2010]; Harveyv Nealis, 61 AD3d 935 [2009]).
The third-party defendants' remaining contentions either are without merit or neednot be addressed in light of our determination. Dillon, J.P., Angiolillo, Austin andHinds-Radix, JJ., concur.