Commercial Division Blog

Posted: March 15, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment, Discovery/Disclosure

Motion for Summary Judgment Premature After Grant of Motion to Compel

On February 21, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Ninth Space LLC v. Goldman, 2023 N.Y. Misc. LEXIS 706, holding that a motion for summary judgment was premature where a recent Appellate Division decision in the case had necessitated reopening discovery into certain aspects of the case and after the court had granted a motion to compel that discovery. The Court explained:

CPLR 3212(f) provides that if a party opposing summary judgment shows 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. . ." In light of the resolution of Plaintiffs' motion to compel above, Bluestone's motion for summary judgment is denied without prejudice to renewal upon the completion of discovery (Berkeley Fed. Bank & Trust FSB v 229 East 53rd St. Assocs., 242 A.D.2d 489, 490, 662 N.Y.S.2d 481 [1st Dept 1997] citing CPLR 3212[f]).

While motions for summary judgment are an important litigation tool, and can sometimes be used early in a case, courts will typically avoid deciding such motions until after all relevant discovery is completed. 

Contact the Commercial Division Blog Committee at if you or a client have questions concerning making a motion for summary judgment.