Wednesday, August 5, 2015

Denial of motiom for summary judgment, with leave to renew.

Practice point:  Plaintiff moved for summary judgment on the issue of liability approximately two months after joinder of issue and prior to the exchange of any discovery.  The Appellate Division affirmed the denial of the motion, with leave to renew after depositions of the parties.

Student note:  A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment, and the opposing party is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated, pursuant to CPLR 3212[f].

Case:  Brea v. Salvatore, NY Slip 06305 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An assault by an intoxicated individual, and leave to amend.