Opinion
CA 03-02494.
Decided June 14, 2004.
Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (Charles T. Major, J.), entered February 4, 2003, in an action to recover damages for breach of contract. The order and judgment granted defendant's motion for summary judgment dismissing the complaint.
COTE LIMPERT, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
DEVORSETZ STINZIANO GILBERTI HEINTZ SMITH, P.C., SYRACUSE (LISA DI POALA HABER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Plaintiffs' contention that the motion was premature "is raised for the first time on appeal and therefore is not properly before us" ( Bradley v. Benchmark Mgt. Corp., 294 A.D.2d 879, 880; see Connors v. Wilmorite, Inc., 225 A.D.2d 1040). In any event, plaintiffs "failed to show that 'facts essential to justify opposition may exist but [could not] then be stated' (CPLR 3212 [f]) and that [plaintiffs] require the discovery of facts that are within the exclusive knowledge of another party" ( Wittkopp v. ADF Constr. Corp., 254 A.D.2d 775, 776; see Franklin v. Dormitory Auth. of State of N.Y., 291 A.D.2d 854; Santangelo v. Fluor Constructors Intl., 266 A.D.2d 893, 894). Plaintiffs contend that they should have been allowed to depose certain nonparties. Plaintiffs, however, failed to establish that they could not have deposed those nonparties during the almost one year between the commencement of the action and defendant's motion herein ( see Santangelo, 266 A.D.2d at 894). Indeed, plaintiffs were aware almost four months prior to defendant's motion that defendant intended to move for summary judgment, yet plaintiffs failed to conduct any discovery in anticipation of opposing that motion. Plaintiffs thus "failed to ascertain the facts due to [their] own voluntary inaction" ( Twining, Nemia Hill v. Read Mem. Hosp., 89 A.D.2d 432, 434; see Franklin, 291 A.D.2d at 854-855).