ALDRIDGE v. RUMSEY

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Supreme Court, Appellate Division, Fourth Department, New York.

Elizabeth ALDRIDGE, Plaintiff-Respondent, v. James A. RUMSEY, Jr., Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER and BALIO, JJ. Anthony B. Targia, Buffalo, for Defendant-Appellant. Mark A. Doane, for Plaintiff-Respondent.

 Supreme Court properly granted plaintiff's motion for partial summary judgment with respect to defendant's liability in this negligence action.   We reject the contention of defendant that the motion was premature because he had not conducted discovery of plaintiff and eight nonparty witnesses.   Plaintiff's motion sought summary relief only with respect to defendant's conduct, and the facts essential to oppose that motion were completely within defendant's knowledge (see, CPLR 3212[f] ).  Moreover, defendant offered no explanation for his failure to investigate the facts or conduct discovery of nonparty witnesses for more than two years after commencement of the action (see, State of New York v. County of Erie, 265 A.D.2d 853, 695 N.Y.S.2d 815).   Contrary to the further contention of defendant, he failed to raise a triable issue of fact with respect to the applicability of the emergency doctrine.   The affirmation of defendant's attorney, who lacked first-hand knowledge of the facts relevant to the applicability of the doctrine, is insufficient to raise a triable issue of fact to defeat plaintiff's motion (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Order unanimously affirmed with costs.

MEMORANDUM: