MIRANDA v. (and a third-party action). (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated January 7, 2004, as, inter alia, granted the motion of the defendant Mitchell Rubber Products, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, with costs, the motion is denied, with leave to renew upon the completion of disclosure, and the complaint insofar as asserted against the defendant Mitchell Rubber Products, Inc., is reinstated.

The Supreme Court granted the motion for summary judgment of the defendant Mitchell Rubber Products, Inc. (hereinafter Mitchell), “without prejudice for the parties to move to reconsider and restore the action against [it].”   This language implies that the Supreme Court recognized that substantial disclosure remained outstanding in this action and that evidence may later be discovered showing that Mitchell manufactured or installed the rubber mats on which the infant plaintiff allegedly was injured.   Under these circumstances, the Supreme Court erred in granting Mitchell's premature motion for summary judgment to dismiss the complaint insofar as asserted against it (see CPLR 3212[f];  Executive Aviation Servs. v. Flightways of Long Is., 15 A.D.3d 611, 790 N.Y.S.2d 537;  Finnegan v. Ulrich, 288 A.D.2d 342, 733 N.Y.S.2d 873;  Brown v. County of Nassau, 226 A.D.2d 492, 641 N.Y.S.2d 554).   Accordingly, the motion should have been denied with leave to renew upon the completion of disclosure.