On August 1, 2018, Justice Platkin of the Albany County Commercial Division issued a decision in Horvath v. High Peaks Sand, Gravel & Mins., LLC, 2018 NY Slip Op. 51214(U), denying a request to delay summary judgment to allow the defendant to take more discovery because the defendant had not showed that relevant evidence was in the plaintiff’s exclusive possession, explaining:
[D]efendants argue that plaintiff’s motion is premature and that additional discovery is needed, maintaining that there are significant and essential facts that need to be addressed during discovery and plaintiff’s deposition that will permit them to prove their affirmative defenses. Specifically, defendants seek to question plaintiff regarding: (1) the alleged modification agreement to release High Peaks from its obligations under the Note; and (2) payments received by plaintiff from defendants.
Under CPLR 3212(f), summary judgment may be denied as premature where the opposing party has not yet had adequate opportunity to conduct discovery. It is necessary for the party opposing summary judgment to demonstrate how further discovery might reveal the existence of evidence within the exclusive knowledge of the movant that would warrant denial of the motion. The mere hope that further discovery will disclose such evidence is insufficient.
The Court concludes that defendants have failed to demonstrate that information germane to their defenses of accord/satisfaction and payment lie in the exclusive possession of plaintiff.
As stated above, the absence of an accord and satisfaction is demonstrated by the parties’ email communications, and it is apparent from defendants’ Answer and their opposition to the motion that they have access to the Guarantor’s emails with plaintiff. Further, defendants offer no reason to believe that a deposition of plaintiff is required to explain the eight payments made by High Peaks over seven years that total a little more than $5,000, particularly where defendants themselves denominated such payments as royalty payments. Indeed, knowledge regarding these payments lies equally within the possession of High Peaks.
Thus, defendants have failed to show that further discovery would lead to competent evidence in support of their defenses that is in the exclusive possession of plaintiff.
(Internal quotations and citations omitted).
Cases in the Commercial Division of the New York courts usually involve a motion to dismiss at the outset and then a motion for summary judgment at the close of discovery, so such motions are a big part of our practice. Contact Schlam Stone & Dolan partner John Lundin at email@example.com if you or a client have questions about seeking or opposing a motion for pre-trial dismissal of a commercial lawsuit.
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