ROMEO v. Hallen Construction Co., et al., third-party defendants. (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 9, 1998, as denied their cross motion, inter alia, to strike the answer of the defendant Brooklyn Union Gas Company, and granted the cross motion of the defendant Brooklyn Union Gas Company for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the plaintiffs' contention, the cross motion of the defendant Brooklyn Union Gas Company (hereinafter Brooklyn Union) for summary judgment dismissing the complaint insofar as asserted against it was properly granted notwithstanding the fact that discovery had not yet been completed, since “there was only hope and speculation as to what additional discovery would uncover in the present situation” (Quinones v. Board of Educ., 248 A.D.2d 696, 670 N.Y.S.2d 333;  see, Mazzaferro v. Barterama Corp., 218 A.D.2d 643, 630 N.Y.S.2d 346;  see also, Toth v. Pergament Home Ctr., 250 A.D.2d 599, 672 N.Y.S.2d 247).

 Insofar as the plaintiffs contend that Brooklyn Union failed to comply with discovery demands, “[a party] may not be compelled to produce information that does not exist or which he [or she] does not possess” (Corriel v. Volkswagen of Am., 127 A.D.2d 729, 731, 512 N.Y.S.2d 126;  see, Lauro v. Top of the Class Caterers, 169 A.D.2d 708, 565 N.Y.S.2d 714;  Rosado v. Mercedes-Benz of North Amer., 103 A.D.2d 395, 398, 480 N.Y.S.2d 124).   Accordingly, the cross motion to strike the answer of Brooklyn Union on that ground was properly denied.

MEMORANDUM BY THE COURT.