Kent v. 534 East 11th Street, 80 A.D.3d 106 (2010)

Citation: Kent v. 534 East 11th Street, 80 A.D.3d 106 (2010)
Parent Document: Kent v. 534 East 11th Street, 80 A.D.3d 106 (2010)
Jurisdiction: New York (state)
Effective Date: 2010-10-28
Original Source: https://www.courtlistener.com/opinion/5953771/kent-v-534-east-11th-street/ ↗

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Pursuant to CPLR 3212 (f), a motion for summary judgment will be denied if it appears that facts necessary to oppose the motion exist, but are unavailable to the opposing party. This is particularly true when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party (Esposito v Metropolitan Transp. Auth., 264 AD2d 370, 371 [1999]; Franklin Natl. Bank of Long Is. v De Giacomo, 20 AD2d 797, 797 [1964]). Insofar as defendants’ motion for summary judgment was granted on grounds that the record was bereft of admissible proof demonstrating elevated toxicity levels within plaintiffs apartment, it is inconceivable how the discovery sought by plaintiff from defendants — photographs and other documents regarding the construction work being performed outside her apartment — would have allowed her to successfully controvert defendants’ prima facie showing that plaintiff’s apartment, when tested, evinced no toxins. None of the *117discovery sought would have demonstrated the level of toxins, if any, within plaintiffs apartment and thus plaintiffs mere hope that somehow further discovery will yield evidence to prove her case is insufficient for denial of summary judgment (Jones v Surrey Coop. Apts., 263 AD2d 33, 38 [1999]). Thus, CPLR 3212 (f) did not mandate denial of defendants’ initial motion for summary judgment, and in granting the same the motion court neither misapplied the law nor misapprehended the facts. Accordingly, granting plaintiffs motion for reargument was improper.

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