

Herrera v Gargiso (2016 NY Slip Op 05120)





Herrera v Gargiso


2016 NY Slip Op 05120


Decided on June 29, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 29, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
SHERI S. ROMAN, JJ.


2015-11792
 (Index No. 1604/15)

[*1]Diana Christina Herrera, appellant, 
vJames P. Gargiso, et al., respondents.


Arze & Mollica, LLP, Brooklyn, NY (Raymond J. Mollica of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, NY (Patrick J. Lawless of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Dufficy, J.), dated October 28, 2015, as denied her motion for summary judgment on the issue of liability.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by adding to the first decretal paragraph thereof, after the phrase "denied in all respects," the words "without prejudice to renewal after completion of discovery"; as so modified, the order is affirmed insofar as appealed from, with costs payable to the defendants.
The plaintiff allegedly was injured while she was crossing a street in Queens within a crosswalk when she was struck by a truck operated by the defendant James P. Gargiso and owned by the defendants Dependable Transport, Inc., and ESF Transport, Inc. The plaintiff thereafter commenced this action against the defendants to recover damages for personal injuries. The plaintiff moved for summary judgment on the issue of liability, contending that the defendant driver's negligent operation of the truck was the sole proximate cause of the accident. Although the Supreme Court concluded that the motion was premature, it nonetheless denied the motion in all respects. We modify.
A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Brea v Salvatore, 130 AD3d 956; Martinez v 305 W. 52 Condominium, 128 AD3d 912, 914). Although the Supreme Court concluded that it would have been premature to award summary judgment at this stage of the action, it failed to provide for renewal of the motion upon the completion of discovery. The parties' factual accounts of the accident differed substantially, little discovery had taken place, and depositions of the parties had not yet occurred at the time the motion was made (see CPLR 3212[f]; Takhalov v Rottenberg, 128 AD3d 678; Malester v Rampil, 118 AD3d 855). Accordingly, the denial of the plaintiff's motion should have been without prejudice to renewal upon the completion of discovery.
MASTRO, J.P., DICKERSON, AUSTIN and ROMAN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


