Karen Ciraldo, plaintiff-respondent, v. LLC (2026)

Submitted—January 5, 2026

DECISION & ORDER

C/

In an action to recover damages for personal injuries, the defendant Westbury Properties, LLC, appeals from an order of the Supreme Court, Nassau County (Thomas Rademaker, J.), dated October 13, 2023.  The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

In February 2021, the plaintiff allegedly was injured when she tripped and fell in a parking lot due to a defective condition while walking toward the entrance to a King Kullen supermarket located in a shopping center in Levittown.  The King Kullen supermarket was a tenant in the shopping center, which was owned by Westbury Properties, LLC (hereinafter Westbury Properties).

The plaintiff commenced this action to recover damages for personal injuries against, among others, Westbury Properties, King Kullen, and King Kullen Grocery Co., Inc., and the Town of Hempstead and Town of Hempstead Engineering Department (hereinafter together the Town defendants).  Prior to the completion of discovery, Westbury Properties moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.  In an order dated October 13, 2023, the Supreme Court, inter alia, denied the motion.  Westbury Properties appeals.

“A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment” (Salameh v. Yarkovski, 156 AD3d 659, 660;  see Magistro v. New York City Hous. Auth., 235 AD3d 733, 736).  “A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated” (Brea v. Salvatore, 130 AD3d 956, 956;  see CPLR 3212[f];  Magistro v. New York City Hous. Auth., 235 AD3d at 736).  A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts necessary to oppose the motion are exclusively within the knowledge and control of the movant(s) (see CPLR 3212[f];  Min Gyo Cho v. Marcario, 238 AD3d 703;  Al–Rowmeim v. Alazwear, 233 AD3d 640;  Knowles v. 21–43 27th St., LLC, 224 AD3d 737, 737).

Here, Westbury Properties' motion was made before any depositions were taken.  The plaintiff and the Town defendants demonstrated that facts necessary to oppose the motion with respect to several issues, including the creation of the alleged condition in the parking lot and any use of the parking lot at issue by Westbury Properties, were exclusively within the knowledge of that defendant (see Magistro v. New York City Hous. Auth., 235 AD3d at 736;  Al–Rowmeim v. Alazwear, 233 AD3d at 642;  Knowles v. 21–43 27th St., LLC, 224 AD3d at 737;  Magee v. County of Suffolk, 14 AD3d 664).  Accordingly, the Supreme Court properly denied, as premature, Westbury Properties' motion.

The remaining contentions of Westbury Properties are academic in light of our determination.

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court