Pre-Discovery Motions For Summary Judgment Can Be Premature

A plaintiff may sometimes make a motion for Summary Judgment or Dismissal before there is any chance to begin discovery and really explore the facts of a case. One of the most glaring examples is when there is key knowledge or information that is in exclusive control of the plaintiff for which a defendant has no opportunity to obtain. Below is an excerpt from a case discussing this issue.

Where it is likely that defenses depend upon knowledge in the possession of the lender, which could be disclosed by discovery, summary judgment in favor of the lender is precluded. Gates v. Easy Living Homes, Inc., 29 3d A.D. 733 (2d Dept. 2006). In addition, CPLR § 3212(f) provides that where discovery is needed and facts which justify opposition to summary judgment may exist, the Court may deny the motion and permit disclosure to proceed:

“3212 (f) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the Court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.”


If you have any legal questions or need help with summary judgment motions or discovery, please contact Attorney Scott Lanin at (212) 764-7250 x 201 or use the contact form in the right sidebar.

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