State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 5, 2016 521864 

________________________________

CATHY GITMAN,

Respondent,

v

RUBEN MARTINEZ et al., MEMORANDUM AND ORDER

Appellants,

and

HERBERT BENNER et al.,

Respondents.

________________________________

Calendar Date: March 23, 2016

Before: Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.

__________

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,

Albany (Brian D. Carr of counsel), for appellants.

Buttafuoco & Associates, PLLC, Woodbury (Scott Szczesny of

counsel), for Cathy Gitman, respondent.

Law Offices of Theresa J. Puleo, Syracuse (John F. Pfeifer

of counsel), for Herbert Benner and another, respondents.

__________

Lahtinen, J.

Appeals (1) from an order of the Supreme Court (Melkonian,

J.), entered December 24, 2014 in Ulster County, which, among

other things, partially granted plaintiff's motion for partial

summary judgment, and (2) from an order of said court, entered

June 5, 2015 in Ulster County, which denied a motion by

defendants Ruben Martinez and Crete Carrier Corp. to, among other

things, renew.
-2- 521864 

In September 2013, plaintiff sustained injuries when she

was involved in an accident with two tractor trailers while

traveling on Interstate 87 in Ulster County. The accident

occurred as the three vehicles approached or were in a

construction zone where travel was eventually restricted to one

lane. Plaintiff's car was ahead of the two tractor trailers, she

was followed first by the tractor trailer operated by defendant

Herbert Benner and owned by defendant Zook Trucking, LLC

(hereinafter collectively referred to as Zook) and then by the

tractor trailer operated by defendant Ruben Martinez and owned by

defendant Crete Carrier Corp. (hereinafter collectively referred

to as Crete). Her car was struck in the rear during the

accident. She commenced this negligence action in November 2013

and cross claims were asserted between Crete and Zook. 

In July 2014, while disclosure was ongoing and before any

depositions had been conducted, plaintiff moved for partial

summary judgment on the issue of liability. In a decision and

order entered in December 2014, Supreme Court found that Crete

caused the accident and granted plaintiff's motion as to Crete. 

The court also sua sponte searched the record (see CPLR 3212 [b])

and dismissed Crete's cross claim and plaintiff's complaint as to

Zook. Crete's subsequent motion to renew was denied by Supreme

Court in June 2015.1 Crete appeals from both the December 2014

and June 2015 orders.

Plaintiff's motion for partial summary judgment should have

been denied as premature. "[A] summary judgment motion is

properly denied as premature when the nonmoving party has not

been given reasonable time and opportunity to conduct disclosure

relative to pertinent evidence that is within the exclusive

knowledge of the movant or a codefendant" (Metichecchia v

Palmeri, 23 AD3d 894, 895 [2005]; see Catena v Amsterdam Mem.

Hosp., 6 AD3d 1037, 1038-1039 [2004]). Here, issue had been

1 Another motion to renew was made while this appeal was

pending. In February 2016, Supreme Court granted renewal and

modified its December 2014 order, reversing its sua sponte relief

by reinstating Crete's cross claim and plaintiff's complaint

against Zook.
-3- 521864 

joined for only about seven months at the time that plaintiff

made the motion (cf. Judd v Vilardo, 57 AD3d 1127, 1131 [2008]

[action had been pending for five years]). Crete had not

received full responses to its disclosure demands and had written

follow-up letters regarding the demands. Significantly, no

depositions had yet been conducted, and the scheduling order

still allowed more than three months before all depositions were

to be completed. 

The importance of depositions is readily apparent from the

varying versions of the accident provided in affidavits in

opposition to the motion by Martinez and Benner. Further,

plaintiff's affidavit is cursory and wholly conclusory regarding

how the accident occurred. Although her motion relied in large

part on a description of the accident in a police report, there

is no indication that the author of such report was a witness to

the accident or that the description therein otherwise

constituted admissible evidence (see Shaw v Rosha Enters., Inc.,

129 AD3d 1574, 1575 [2015]; Dawn VV. v State of New York, 47 AD3d

1048, 1049 [2008]; Jerome Prince, Richardson on Evidence § 8-307

[Farrell 11th ed 2008]). Many important aspects of how the

accident occurred are not clear from the competent evidence

submitted by plaintiff. The depositions of the parties is

necessary to develop the relevant facts. Under the

circumstances, plaintiff's motion should have been denied as

premature without prejudice to seeking such relief following

completion of disclosure (see CPLR 3212 [f]; Takhalov v

Rottenberg, 128 AD3d 678, 678 [2015]; Sorbello v Birchez Assoc.,

LLC, 61 AD3d 1225, 1226-1227 [2009]; Catena v Amsterdam Mem.

Hosp., 6 AD3d at 1038-1039). 

Crete's remaining arguments regarding the December 2014

order are academic or rendered moot by Supreme Court's February

2016 order. The appeal from the June 2015 order denying Crete's 

motion to renew is academic.

Peters, P.J., Rose, Lynch and Aarons, JJ., concur.
-4- 521864 

ORDERED that the order entered December 24, 2014 is

modified, on the law, without costs, by reversing so much thereof

as granted plaintiff's motion for partial summary judgment

against defendants Ruben Martinez and Crete Carrier Corp.; said

motion denied in its entirety without prejudice as to all

defendants; and, as so modified, affirmed. 

ORDERED that the appeal from the order entered June 5, 2015

is dismissed, as academic, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court