Plaintiff brings this personal injury case against MCHEBE'S PARTNER'S, INC. D/B/A MCHEBE'S DEPOT (hereinafter "MCHEBE'S"), Richard P. Fehringer (hereinafter "Fehringer"), John Doe, Mas Security Associates, Inc. (hereinafter "MAS") and PDQ Security, LLC. MCHEBE'S and Fehringer now move for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint against them in its entirety, and dismissing the defendant, MAS's crossclaims against them in their entirety. Defendant MAS has not opposed the motion.

The subject incident arises out of the actions of an unknown third-party, John Doe, in front of a bar/restaurant located at 722 Fulton Avenue, Hempstead, New York (hereinafter "subject premises") in the early morning of January 1, 2016. According to the plaintiff, while exiting the subject premises of MCHEBE'S, he was struck in the face by an intoxicated patron of the establishment. After being struck, plaintiff alleges that John Doe then tackled him causing him to fall to the ground and sustaining personal injuries. Plaintiff further alleges that John Doe purportedly was employed by defendant, MAS and, that John Doe was acting for or on behalf of MCHEBE'S and/or Fehringer.

Movants' contend that they did not owe a duty to the plaintiff since they did not own or operate the business at the subject premises at the time of the incident. Therefore, movants argue that the plaintiff's claims against them must fail. Movants also maintain that they cannot be found to have had any duty to defendant MAS for indemnification. Therefore, movants' contend that MAS' crossclaims for defense and indemnification must also fail.

In support of their contention that they were not the owners of the business located at the subject premises on the date the subject incident occurred, movants rely on Fehringer's affidavit wherein he acknowledges that MCHEBE'S is a corporation which used to own and operate a bar/restaurant at the subject premises. Fehringer maintains that the results of a public license [*2]query on the New York State Liquor Authority website indicates that MCHEBE'S held the liquor license at the subject premises from September 1, 2004 through August 31, 2006. Finally, Fehringer argues that although MCHEBE'S is still and active corporation as per the NYS Department of State, Division of Corporations, MCHEBE'S does not currently operate any business and did not operate any business at all, let alone at the subject premises, after August 31, 2006. Movants' submit the State Liquor Authority search results and the New York State Department of State, Division of Corporations search results as documentary evidence in support of its argument that it lacked ownership or operation of the subject premise son the date of plaintiff's incident.

In opposition, plaintiff opposes the summary judgment motion by proffering an affirmation by its counsel contending that the instant motion is premature, as relevant and material discovery remains outstanding. Counsel also argues that movants have failed to make out a prima facie case, and merely submitted a self-serving affidavit and an expired liquor license.

In reply, movants argue that in opposition to its motion, plaintiff failed to raise any substantive facts to oppose the summary judgment motion, instead merely relying on the argument that discovery is at an early stage. Movants also submit the listing of the complete results from a search of the New York State Liquor Authority Division of Alcohol Beverage Control Public License query for the subject premises. The search results show various entities which have previously held the liquor license for the subject premises along with the expiration dates applicable to each entity's license. A review of the search results shows that the license holder for the subject premises at the time of the plaintiff's incident was a different entity, whose license was active from April 1, 2015 to March 31, 2017 and whose sole principal was not Fehringer. As such, movants maintain that based on its submission, there will be no discovery that will raise relevant liability factual issues.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, the moving defendants have made a prima facie showing of their entitlement to judgment as a matter of law. The affidavit of Fehringer and its supporting documents, clearly outlined that the moving defendants owed no duty to the plaintiff since they had not owned or operated the bar/restaurant establishment at the subject premises since August 31, 2006, almost ten years before the plaintiff's incident on January 1, 2016.

In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of [*3]plaintiff's attorney, who has no personal knowledge of facts asserted herein, is insufficient to raise a triable issue of fact with respect to movants' claimed lack of responsibility of the premises where plaintiff was caused to be harmed (see Hoffman v Eastern Long Is. Transp. Enter., 266 AD2d 509 [1999]).

The plaintiff likewise failed to demonstrate that the motion was premature. Pursuant to CPLR 3212(f), the court may deny a motion for summary judgment if "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." The contention that further discovery may yield some evidence of fault on the movant's part is speculative and therefore insufficient to rebut the presumption. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment (see Costaneda v DO & CO New York Catering, Inc., 144 AD3d 407 [1st Dept 2016]. A litigant seeking to avoid summary judgment on the ground that discovery has not been conducted must provide an evidentiary basis demonstrating that discovery may lead to relevant evidence or that the facts essential to opposing the motion are in the movant's exclusive knowledge and control (see CPLR 3212 [f]; Medina v Rodriguez, 92 AD3d 850, 851 [2012]; Hill v Ackall, 71 AD3d 829, 830 [2010]). The plaintiff made no such showing.

Accordingly, it is hereby

ORDERED that defendants, MCHEBE'S PARTNERS INC. and Richard P. Fehringer's motion for summary judgment is granted. The complaint and all cross claims against them are dismissed.

This is the Decision and Order of the Court.