C & L Bros. v. 3467 Merrick Road Laundry, Inc.

In an action, inter alia, to recover damages on a series of promissory notes, the plaintiff appeals from an order of the Supreme Court, Queens County (Durante, J.), dated June 26, 1996, which granted the motion of the defendant No-Jo Laundries, Inc., for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant No-Jo Laundries, Inc. The plaintiff has succeeded in establishing that facts essential to opposing the motion of the defendant No-Jo Laundries, Inc. (hereinafter No-Jo), for summary judgment are exclusively within the knowledge of No-Jo. Moreover, notwithstanding No-Jo’s execution of a stipulation expressly providing for discovery in this action, the record unequivocally demonstrates that the plaintiff has not been afforded a reasonable opportunity to conduct such discovery. Under these circumstances, the Supreme Court should have denied No-Jo’s motion for summary judgment (see, CPLR 3212 [f]; Urcan v Cocarelli, 234 AD2d 537; Halpern Dev. Venture v Board of Trustees, 222 AD2d 652; Baron v Incorporated Vil. of Freeport, 143 AD2d 792). Sullivan, J. P., Pizzuto, Friedmann and Krausman, JJ., concur.