Thursday, September 22, 2016

A defendant files for summary judgment before plaintiff commences discovery.

Practice point:  Plaintiff's failure to commence discovery during the ten months between defendant's answer and defendant's motion to dismiss, without more, does not warrant granting the motion, pursuant to CPLR 3212(f), where the existing record does not negate plaintiff's theory of liability.

Case:  Gomez v. Kozot Realty Corp., NY Slip Op 06046 (1st Dep't September 15, 2016)

Tomorrow's issue: Labor Law liability for a fall from a scaffold or ladder.