Weltmann v. RWP Group, Inc.

• Decision Date: 21 October 1996
• Citation: 232 A.D.2d 550,648 N.Y.S.2d 970
• Parties: Ronald F. WELTMANN, et al., Appellants, v. RWP GROUP, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 970

648 N.Y.S.2d 970

232 A.D.2d 550

Ronald F. WELTMANN, et al., Appellants, v. RWP GROUP, INC., et al., Respondents.

Supreme Court of New York, Appellate Division Second Department.

Oct. 21, 1996.

Dollinger, Gonski, Grossman, Permut & Hirschhorn, Carle Place (Matthew Dollinger, of counsel), for appellants.

Peter M. Redmond, P.C., Bayside, for respondents.

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated December 29, 1995, which denied their motion, in effect, for partial summary judgment on their first cause of action and to dismiss the defendants' affirmative defenses and counterclaims.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion for partial summary judgment is granted, the plaintiffs are awarded judgment on their first cause of action, the remaining causes of action are severed, and the defendants' affirmative defenses and counterclaims are dismissed.

In support of their motion for partial summary judgment on their first cause of action the plaintiffs came forward with adequate affidavits and documentary evidence to demonstrate prima facie their entitlement to judgment as a matter of law, thus shifting the burden to the defendants to produce admissible evidence to establish the existence of material issues of fact (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). While we agree with the Supreme Court's finding that the defendants failed to sustain this burden, we disagree with its determination to deny the motion for partial summary judgment and to permit the defendants to conduct discovery in an effort to find evidence to support their affirmative defenses and counterclaims (see generally, CPLR 3212[f] ). Where, as in this case, the facts are not exclusively within the movant's knowledge, the opponent cannot avoid summary judgment by relying upon "[t]he 'mere hope' that evidence sufficient to defeat the motion may be uncovered during the discovery process" (Mazzaferro v. Barterama Corp., 218 A.D.2d 643, 644, 630 N.Y.S.2d 346, quoting Jones v. Gameray, 153 A.D.2d 550, 551, 544 N.Y.S.2d 209; see, Kennerly v. Campbell Chain Co., 133 A.D.2d 669, 519 N.Y.S.2d 839). Indeed, "[s]peculation as to what might be produced if discovery were to be had is not enough to defeat a motion for summary judgment" (Carrington v. City of New York, 201 A.D.2d 525, 527, 607...