ADRIANIS v. Drew Napel, defendant-respondent. (2006)

In an action to recover damages for personal injuries, the defendants Richard Viera and Fernando G. Rossi appeal from an order of the Supreme Court, Queens County (Kelly, J.), dated September 21, 2005, which denied, as premature, their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law and as an exercise of discretion, by adding a provision thereto that the denial of the defendants' motion for summary judgment is with leave to renew upon the completion of the defendant Daniel Fox's deposition;  as so modified, the order is affirmed, without costs or disbursements.

 The Supreme Court properly denied, as premature, the appellants' motion which was for summary judgment dismissing the complaint insofar as asserted against them, as the deposition of the defendant Daniel Fox had not been conducted and the parties had previously stipulated to depose Fox only seven days after this motion was made (see Groves v. Land's End Hous. Co., 80 N.Y.2d 978, 592 N.Y.S.2d 643, 607 N.E.2d 790;  Afzal v. Board of Fire Commrs. of Bellmore Fire Dist., 23 A.D.3d 507, 806 N.Y.S.2d 637;  Whelan v. Port Auth. of N.Y. & N.J., 19 A.D.3d 483, 797 N.Y.S.2d 113;  Rengifo v. City of New York, 7 A.D.3d 773, 776 N.Y.S.2d 865).   However, the Supreme Court should have denied the motion with leave to renew following completion of the Fox deposition (see Johnson v. Verrilli, 139 A.D.2d 497, 526 N.Y.S.2d 600;   Kaminester v. Weintraub, 131 A.D.2d 440, 441, 516 N.Y.S.2d 234).