CORVINO v. SCHINELLER (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), entered February 16, 2017.  The order denied the plaintiff's motion for summary judgment on the issue of liability, without prejudice to renew upon the completion of discovery.

ORDERED that the order is affirmed, with costs.

On December 9, 2015, the plaintiff was operating a vehicle that was involved in an accident with a vehicle operated by the defendant at the intersection of Hicksville Road and North Queens Avenue in Nassau County.  The plaintiff subsequently commenced this action against the defendant, alleging negligence and personal injuries.  After joinder of issue, but before the note of issue was filed, the plaintiff moved for summary judgment on the issue of liability.  The Supreme Court denied the motion, without prejudice to renew upon the completion of discovery, and the plaintiff appeals.

We agree with the Supreme Court's determination denying the plaintiff's motion for summary judgment on the issue of liability as the parties' factual accounts differ.  The plaintiff moved for summary judgment before the parties had an adequate opportunity to conduct discovery, as little discovery had taken place and the depositions of the parties had not yet occurred (see CPLR 3212[f];  Bernstein v. New York City Tr. Auth., 153 A.D.3d 897, 897–898, 61 N.Y.S.3d 113;  Sodhi v. 112 Park Enters., LLC, 147 A.D.3d 1000, 1001, 47 N.Y.S.3d 384;  Herrera v. Gargiso, 140 A.D.3d 1122, 1123, 34 N.Y.S.3d 498).  Moreover, the defendant submitted evidence suggesting that further discovery might lead to relevant evidence pertaining to the circumstances of the accident (see Hawana v. Carbuccia, 164 A.D.3d 563, 81 N.Y.S.3d 543;  Worley v. Safemove Rental, 120 A.D.3d 667, 668, 990 N.Y.S.2d 890).  The defendant's contention that the plaintiff's motion should have been denied without leave to renew is not properly before this Court.  However, we note our concern that, where a motion for summary judgment has been made prematurely, granting leave to renew upon completion of discovery may only encourage the making of premature motions, resulting in successive motion practice and, in turn, successive appeals, thus increasing the burdens on this Court.  Motion courts should therefore exercise their discretion with care in deciding whether to give advance permission to a movant to make a successive motion for summary judgment.

MASTRO, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.