JEFF CONIBER DOING BUSINESS AS JEFF CONIBER TRUCKING PLAINTIFF RESPONDENT v. CENTER POINT TRANSFER STATION INC MATTHEW LOUGHRY AND KENNETH LOUGHRY DEFENDANTS APPELLANTS

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

JEFF CONIBER, DOING BUSINESS AS JEFF CONIBER TRUCKING, PLAINTIFF-RESPONDENT, v. CENTER POINT TRANSFER STATION, INC., MATTHEW W. LOUGHRY AND KENNETH LOUGHRY, DEFENDANTS-APPELLANTS.

CA 10-02125

Decided: March 25, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. E. ROBERT FUSSELL, P.C., LEROY (E. ROBERT FUSSELL OF COUNSEL), FOR DEFENDANTS-APPELLANTS. PIRRELLO, MISSAL, PERSONTE & FEDER, ROCHESTER (STEVEN E. FEDER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by providing that the cross motion is denied without prejudice and as modified the order is affirmed without costs.

Memorandum:  Supreme Court properly concluded that it was premature to grant defendants' cross motion for summary judgment dismissing the complaint at this stage of the litigation, in view of the limited discovery that has been conducted (see CPLR 3212[f];  Sportiello v. City of New York, 6 AD3d 421).   We further conclude, however, that the court should have denied the cross motion without prejudice (see Hall v. Rite Aid Corp., 37 AD3d 1160).   We therefore modify the order accordingly.

Patricia L. Morgan

Clerk of the Court