                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521864
________________________________

CATHY GITMAN,
                    Respondent,
     v

RUBEN MARTINEZ et al.,                      MEMORANDUM AND ORDER
                    Appellants,
      and

HERBERT BENNER et al.,
                    Respondents.
________________________________


Calendar Date:   March 23, 2016

Before:   Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.

                             __________


      Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (Brian D. Carr of counsel), for appellants.

      Buttafuoco & Associates, PLLC, Woodbury (Scott Szczesny of
counsel), for Cathy Gitman, respondent.

      Law Offices of Theresa J. Puleo, Syracuse (John F. Pfeifer
of counsel), for Herbert Benner and another, respondents.

                             __________


Lahtinen, J.

      Appeals (1) from an order of the Supreme Court (Melkonian,
J.), entered December 24, 2014 in Ulster County, which, among
other things, partially granted plaintiff's motion for partial
summary judgment, and (2) from an order of said court, entered
June 5, 2015 in Ulster County, which denied a motion by
defendants Ruben Martinez and Crete Carrier Corp. to, among other
things, renew.
                              -2-                521864

      In September 2013, plaintiff sustained injuries when she
was involved in an accident with two tractor trailers while
traveling on Interstate 87 in Ulster County. The accident
occurred as the three vehicles approached or were in a
construction zone where travel was eventually restricted to one
lane. Plaintiff's car was ahead of the two tractor trailers, she
was followed first by the tractor trailer operated by defendant
Herbert Benner and owned by defendant Zook Trucking, LLC
(hereinafter collectively referred to as Zook) and then by the
tractor trailer operated by defendant Ruben Martinez and owned by
defendant Crete Carrier Corp. (hereinafter collectively referred
to as Crete). Her car was struck in the rear during the
accident. She commenced this negligence action in November 2013
and cross claims were asserted between Crete and Zook.

      In July 2014, while disclosure was ongoing and before any
depositions had been conducted, plaintiff moved for partial
summary judgment on the issue of liability. In a decision and
order entered in December 2014, Supreme Court found that Crete
caused the accident and granted plaintiff's motion as to Crete.
The court also sua sponte searched the record (see CPLR 3212 [b])
and dismissed Crete's cross claim and plaintiff's complaint as to
Zook. Crete's subsequent motion to renew was denied by Supreme
Court in June 2015.1 Crete appeals from both the December 2014
and June 2015 orders.

      Plaintiff's motion for partial summary judgment should have
been denied as premature. "[A] summary judgment motion is
properly denied as premature when the nonmoving party has not
been given reasonable time and opportunity to conduct disclosure
relative to pertinent evidence that is within the exclusive
knowledge of the movant or a codefendant" (Metichecchia v
Palmeri, 23 AD3d 894, 895 [2005]; see Catena v Amsterdam Mem.
Hosp., 6 AD3d 1037, 1038-1039 [2004]). Here, issue had been


    1
        Another motion to renew was made while this appeal was
pending. In February 2016, Supreme Court granted renewal and
modified its December 2014 order, reversing its sua sponte relief
by reinstating Crete's cross claim and plaintiff's complaint
against Zook.
                              -3-                521864

joined for only about seven months at the time that plaintiff
made the motion (cf. Judd v Vilardo, 57 AD3d 1127, 1131 [2008]
[action had been pending for five years]). Crete had not
received full responses to its disclosure demands and had written
follow-up letters regarding the demands. Significantly, no
depositions had yet been conducted, and the scheduling order
still allowed more than three months before all depositions were
to be completed.

      The importance of depositions is readily apparent from the
varying versions of the accident provided in affidavits in
opposition to the motion by Martinez and Benner. Further,
plaintiff's affidavit is cursory and wholly conclusory regarding
how the accident occurred. Although her motion relied in large
part on a description of the accident in a police report, there
is no indication that the author of such report was a witness to
the accident or that the description therein otherwise
constituted admissible evidence (see Shaw v Rosha Enters., Inc.,
129 AD3d 1574, 1575 [2015]; Dawn VV. v State of New York, 47 AD3d
1048, 1049 [2008]; Jerome Prince, Richardson on Evidence § 8-307
[Farrell 11th ed 2008]). Many important aspects of how the
accident occurred are not clear from the competent evidence
submitted by plaintiff. The depositions of the parties is
necessary to develop the relevant facts. Under the
circumstances, plaintiff's motion should have been denied as
premature without prejudice to seeking such relief following
completion of disclosure (see CPLR 3212 [f]; Takhalov v
Rottenberg, 128 AD3d 678, 678 [2015]; Sorbello v Birchez Assoc.,
LLC, 61 AD3d 1225, 1226-1227 [2009]; Catena v Amsterdam Mem.
Hosp., 6 AD3d at 1038-1039).

      Crete's remaining arguments regarding the December 2014
order are academic or rendered moot by Supreme Court's February
2016 order. The appeal from the June 2015 order denying Crete's
motion to renew is academic.

     Peters, P.J., Rose, Lynch and Aarons, JJ., concur.
                              -4-                  521864

      ORDERED that the order entered December 24, 2014 is
modified, on the law, without costs, by reversing so much thereof
as granted plaintiff's motion for partial summary judgment
against defendants Ruben Martinez and Crete Carrier Corp.; said
motion denied in its entirety without prejudice as to all
defendants; and, as so modified, affirmed.

      ORDERED that the appeal from the order entered June 5, 2015
is dismissed, as academic, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
