AURORA LOAN SERVICES LLC v. Washington Title Insurance Company, appellant. (2009)

In an action, inter alia, to recover damages for fraud, the defendant Washington Title Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated September 13, 2007, as denied, as premature, its motion for summary judgment dismissing the complaint insofar as asserted against it.

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

Although Washington Title Insurance Company (hereinafter Washington Title) demonstrated its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572), the Supreme Court properly denied the motion as premature (see Ruiz v. Griffin, 50 A.D.3d 1005, 1006, 856 N.Y.S.2d 641;  Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183;  Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 792-793, 533 N.Y.S.2d 143).  “CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated” (Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d at 637, 815 N.Y.S.2d 183;  see Ruiz v. Griffin, 50 A.D.3d at 1006, 856 N.Y.S.2d 641).  “This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” (Baron v. Incorporated Vil. of Freeport, 143 A.D.2d at 793, 533 N.Y.S.2d 143).   Here, the plaintiff raised issues warranting further discovery.   Accordingly, the Supreme Court properly denied, as premature, the motion of Washington Title for summary judgment dismissing the complaint insofar as asserted against it.