Gellman v. Latimore

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied [921] without prejudice plaintiffs motion for partial summary judgment dismissing defendant’s counterclaims pending completion of discovery. Defendant raised material issues of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562). Furthermore, defendant has not yet had the opportunity to depose plaintiff. Summary judgment is inappropriate where, as here, “ ‘the existence of essential facts depends upon knowledge exclusively within the possession of the moving party and [such facts] might well be disclosed by * * * examination before trial’ ” or further disclosure (Kindzierski v Foster, 217 AD2d 998, 1000; see, Busby v Ticonderoga Cent. School Dist, 222 AD2d 882). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Amend Pleading.) Present—Denman, P. J., Hayes, Callahan, Doerr and Fallon, JJ.