Jones v. American Commerce Ins. Co.

• Decision Date: 21 February 2012
• Citation: 939 N.Y.S.2d 115,92 A.D.3d 844,2012 N.Y. Slip Op. 01435
• Parties: Dylan JONES, respondent, v. AMERICAN COMMERCE INSURANCE COMPANY, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01435

92 A.D.3d 844

939 N.Y.S.2d 115

Dylan JONES, respondent,

v.AMERICAN COMMERCE INSURANCE COMPANY, appellant.

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

Feb. 21, 2012.

McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for appellant.

Arnold I. Bernstein, White Plains, N.Y., for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action to recover uninsured motorist benefits under an insurance policy, the defendant appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered September 22, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied, with leave to renew after the completion of discovery.

The plaintiff allegedly sustained serious injuries after his motorcycle, which he was operating on eastbound Pound Ridge Road at or near its intersection with Pine Brook Road in the Town of Bedford, was struck by an uninsured vehicle operated by nonparty Allby Morales. At the time of the accident, the plaintiff's insurance policy with the defendant provided, inter alia, uninsured/underinsured motorist coverage and allowed the plaintiff to pursue a claim for pain and suffering against the defendant up to the stated policy limits. In January 2011, the plaintiff commenced this action against the defendant to recover uninsured motorist benefits and issue was joined in March 2011. By service of a notice of motion dated May 25, 2011, prior to any discovery being conducted, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the motion. The defendant appeals and we reverse.

CPLR 3212(f) provides, in relevant part, that a court may deny a motion for summary judgment “[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212[f]; see James v. Aircraft Serv. Intl. Group, 84 A.D.3d 1026, 1027, 924 N.Y.S.2d 114; Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183). “ ‘This is especially so when the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion’ ” ( James v. Aircraft Serv. Intl. Group, 84 A.D.3d at 1027, 924 N.Y.S.2d 114, quoting Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 793, 533 N.Y.S.2d 143; see Dietrich v. Grandsire, 83 A.D.3d 994, 921 N.Y.S.2d 555). Here, the plaintiff moved for summary judgment on the issue of liability prior to the exchange...