Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants Moshe Sternlicht and Mina Sternlicht (hereinafter defendants or the Sternlichts) filed on May 3, 2019, under motion sequence three, for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff Leah Brachfield's (hereinafter plaintiff or Brachfield) complaint. The motion is opposed by the plaintiff.

Notice of Motion

Affirmation in Opposition

Affirmation in Opposition to Cross-Motion and in Reply

On October 30, 2017, plaintiff commenced the instant action for damages for personal injuries by electronically filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On February 16, 2018, the Sternlichts joined issue by electronically filing a verified answer with the KCCO. On March 6, 2019, plaintiff filed the note of issue.

The verified complaint and verified bill of particulars allege the following salient facts. On November 13, 2014, Brachfield tripped and fell on a dangerous and defective condition on the sidewalk adjoining a residential property (hereinafter the subject property). The Sternlichts own the subject property which is located at 1740 46th Street, Brooklyn, New York. The dangerous condition was allegedly caused by, among other things, the Sternlichts' performance of an improper repair of the sidewalk and failure to maintain the sidewalk in a reasonably safe condition.

On March 15, 2019, the defendants filed a motion under sequence number one seeking, among other things, an order pursuant to 22 NYCRR 202.21 (e) vacating the note of issue and to extend the time to move for summary judgment.

On April 22, 2019, plaintiff filed a cross motion under sequence number two seeking, among other things, an order granting summary judgment in plaintiff's favor on liability pursuant to CPLR 3212; striking the defendants' answer pursuant to CPLR 3126; and setting the matter down for an immediate trial date on the issue of damages.

On May 3, 2019, the defendants filed the instant motion under sequence number three, seeking an order granting summary judgment in defendants favor and dismissing the plaintiff's complaint.

By decision and order issued on June 28, 2019 after oral argument, the Court decided motion sequence number one and two and reserved decision on motion sequence number three as follows. The Court denied plaintiff's cross motion seeking summary judgment on the issue of liability pursuant to CPLR 3212 and striking the defendants' answer pursuant to CPLR 3126. The Court also directed the parties to proceed with a discovery schedule set forth within the order. The discovery schedule directed the deposition of the plaintiff and defendants by August 9, 2019, completion of an independent medical examination of the plaintiff by September 27, 2019 and completion of all other discovery by October 25, 2019.

The defendants' motion papers consist of a notice of motion, an affirmation of counsel and seven annexed exhibits labeled A to G. Exhibit A is copy of the plaintiff's summons and verified complaint. Exhibit B is a copy of the defendants' verified answer. Exhibit C is a copy of plaintiff's verified bill of particulars. Exhibit D includes two affidavits, the first by Moshe Sternlicht and the second by Mina Sternlicht. Exhibit E includes two affidavits, the first by Bluma Bar-Horin and the second by Jacob Bar-Horin. Exhibit F is a copy of a certificate of occupancy dated October 14, 1953 for the subject property. Exhibit G is a copy of the NYC [*2]Department of Building, Property Profile Overview.

The plaintiff's opposition consists of an affirmation of counsel and five annexed exhibits labeled A to E. Exhibit A is a copy of a supplemental verified bill of particulars. Exhibit B includes a copy of a preliminary conference order dated April 4, 2018; a copy of a central compliance part order dated November 7, 2018; and a copy of a final pre-note order dated February 27, 2019. Exhibit C is a copy of the deed for 1740 46th Street, Brooklyn, New York. Exhibit D is a copy of the deed for 4514 17th Avenue, Brooklyn, New York. Exhibit E is a copy of the affidavit of George Albro, an officer of the 431 7th Street Housing Corporation.

Defendants' reply papers consist of an affirmation of counsel and two annexed exhibits labeled A and B. Exhibit A includes four affidavits for Moshe Sternlicht, Mina Sternlicht, Blum Bar-Horin and Jacob Bar-Horin. These documents were previously submitted in the defendants motion as Exhibits C and D. Exhibit B is a copy of a letter dated May 24, 2018 from Anthony J. Spiga, Esq., the defendants' counsel, to Mr. Jaroslawicz, plaintiff's counsel.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A moving party must address the specific factual allegations set forth in the complaint and the bill of particulars (Parrilla v Saphire,149 AD3d 856 [2nd Dept 2017], citing, Terranova v. Finklea 45 AD3d 572 [2nd Dept 2007]). ,

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).

CPLR 3212 (f) provides as follows:

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.

Plaintiff's complaint and bill of particulars allege that on November 13, 2014, plaintiff tripped and fell on a dangerous and defective condition on the sidewalk adjoining a property owned by the Sternlichts and located at 1740 46th Street, Brooklyn, New York. Plaintiff also alleged that the dangerous condition was allegedly caused by the Sternlichts' improper repair and failure to maintain the sidewalk in a reasonably safe condition.

In a decision and order dated June 23, 2019, the Court set forth a discovery schedule which directed the parties to complete the deposition of the plaintiff by July 31, 2019 and the deposition of the defendants by August 9, 2019, based on the undisputed fact that neither party has been deposed. There is also no dispute that the plaintiff made a motion for summary judgment under motion sequence number two without having deposed the defendants.

The defendants' instant motion is supported by, among other things, the affidavits of the defendants, and the affidavits of the defendants' daughter and son-in-law who allegedly exclusively occupy the subject property for residential purposes.

Plaintiff does not dispute that the Sternlichts own but do not reside in the subject property. In fact, plaintiff claims that these facts alone make the liability exemption of Administrative Code of the City of New York § 7—210 inapplicable to the Sternlichts. In sum, plaintiff contends that the subject property is not owner occupied and used exclusively for residential purposes. Plaintiff also independently contends that none of the affidavits submitted by the defendants should be considered in support of the motion pursuant to CPLR 3216 due to the Sternlichts' alleged wilful failure to comply with certain discovery orders. Plaintiff further explains that the basis for this position is set forth in a separate cross motion to strike the defendants answer, namely, cross motion sequence number three.

Parties to an action are entitled to reasonable discovery of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity (Allen v Crowell—Collier Publ. Co., 21 NY2d 403, 406 [1968]). A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (Salameh v Yarkovski, 156 AD3d 659, 660 [2nd Dept 2017]; see Okula v City of New York, 147 AD3d 967, 968 [2nd Dept 2017]). A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot, then, be stated (Brea v Salvatore, 130 AD3d 956 [2nd Dept 2015]; see CPLR 3212[f]; Salameh, 156 AD3d at 660).

Although the plaintiff did not cite CPLR 3212 (f) in opposition to the defendants' motion, the arguments that plaintiff advanced unequivocally establish that discovery was not completed. The Court finds that, under these circumstances, essential facts may exist to justify opposition that are within the exclusive knowledge of the defendants. The plaintiff should have had the benefit of the deposition of the defendants in order to fairly respond to the defendants' motion.

Accordingly, the defendants' motion for summary judgment is denied without prejudice as premature. The defendants are granted leave to move for summary judgment after the completion of discovery so long as their motion is filed on or before January 6, 2020.

The motion of defendants Moshe Sternlicht and Mina Sterlicht for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff Leah Brachfield's complaint is denied without prejudice as premature.

The defendants are granted leave to move for summary judgment after the completion of discovery so long as the motion for summary judgment is filed on or before January 6, 2020.

The foregoing constitutes the decision and order of this Court.