On June 20, 2014, the Fourth Department issued a decision in Resetarits Construction Corp. v. Olmsted, 2014 NY Slip Op. 04633, granting a motion for summary judgment despite the plaintiff’s argument that the motion was premature because the plaintiff had not had an adequate opportunity to take discovery.
In Resetarits Construction Corp., the plaintiff sued the defendant “for, inter alia, breach of contract based on the alleged failure of defendant . . . to pay for work performed by plaintiff pursuant to a construction contract.” The trial court granted the plaintiff’s motion for summary judgment on its breach of contract claim, denying the defendant’s cross-motion compelling additional discovery. The Fourth Department affirmed, explaining that the plaintiff had established its entitlement to judgment and:
the [trial] court properly rejected defendants’ contention that plaintiff’s motion was premature because further discovery was necessary and thus properly denied the cross motion seeking that further discovery. In opposing a summary judgment motion as premature pursuant to CPLR 3212 (f), the opposing party must make an evidentiary showing supporting the conclusion that facts essential to justify opposition may exist but cannot then be stated, and mere speculation or conjecture is insufficient. The opposing party must show that the discovery sought would produce evidence sufficient to defeat the motion and that facts essential to oppose the motion were in the movant’s exclusive knowledge and possession and could be obtained by discovery. Defendants failed to make the requisite showing here.
(Internal quotations and citations omitted) (emphasis added).