           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
254
CA 10-02125
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


JEFF CONIBER, DOING BUSINESS AS JEFF CONIBER
TRUCKING, PLAINTIFF-RESPONDENT,

                     V                            MEMORANDUM AND ORDER

CENTER POINT TRANSFER STATION, INC.,
MATTHEW W. LOUGHRY AND KENNETH LOUGHRY,
DEFENDANTS-APPELLANTS.


E. ROBERT FUSSELL, P.C., LEROY (E. ROBERT FUSSELL OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

PIRRELLO, MISSAL, PERSONTE & FEDER, ROCHESTER (STEVEN E. FEDER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered February 2, 2010 in a breach of contract
action. The order, insofar as appealed from, denied the cross motion
of defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by providing that the cross motion is
denied without prejudice and as modified the order is affirmed without
costs.

     Memorandum: Supreme Court properly concluded that it was
premature to grant defendants’ cross motion for summary judgment
dismissing the complaint at this stage of the litigation, in view of
the limited discovery that has been conducted (see CPLR 3212 [f];
Sportiello v City of New York, 6 AD3d 421). We further conclude,
however, that the court should have denied the cross motion without
prejudice (see Hall v Rite Aid Corp., 37 AD3d 1160). We therefore
modify the order accordingly.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
