Gauchan v. Chase Manhattan Bank

—Order, Supreme Court, Queens County (Joan Marie Durante, J.), entered on or about January 17, 1992 in an action for personal injury, granting defendant’s motion for summary judgment pursuant to CPLR 3212 and dismissing the complaint, unanimously reversed, on the law, and the motion denied, without costs. The IAS Court erred in granting defendant’s motion for summary judgment where defendant failed to show, in this slip and fall personal injury action, the absence of a triable issue of fact. Not only did the court err in finding that plaintiff had not pursued discovery diligently, where defendant had failed to respond to plaintiff’s discovery requests by the time the motion was submitted, but where the knowledge of salient facts remains exclusively within the possession of the moving party, a motion for summary judgment must be denied (Vitti v Maloney, 109 AD2d 836). Concur—Ellerin, J. P., Wallach, Kupferman, Rubin and Williams, JJ.