MOTORCYCLE RIDER IN ACCIDENT SUING TO RECOVER UNINSURED BENEFITS FROM HIS INSURANCE CARRIER CAN'T GET SUMMARY JUDGMENT ON LIABILITY BEFORE EXCHANGE OF DISCOVERY

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

Case: Dylan Jones v. American Commerce Insurance Company

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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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 of any discovery. Since the defendant had no personal knowledge of the relevant facts (cf. Deleg v. Vinci, 82 A.D.3d 1146, 919 N.Y.S.2d 396), it should be afforded the opportunity to conduct discovery, including depositions of the plaintiff, the operator of the uninsured vehicle, and an eyewitness identified in the police accident report (see Gardner v. Cason, Inc., 82 A.D.3d 930, 931, 918 N.Y.S.2d 769).

Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability, with leave to renew upon the completion of discovery (see Dietrich v. Grandsire, 83 A.D.3d at 994, 921 N.Y.S.2d 555; Gardner v. Cason, Inc., 82 A.D.3d at 931, 918 N.Y.S.2d 769; cf. Gruenfeld v. City of New Rochelle, 72 A.D.3d 1025, 1026, 900 N.Y.S.2d 144).

The plaintiff's remaining contentions are rendered academic by our determination.

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