Summary
In Government Employees Insurance Co. v Desiderio, 104 AD2d 791 (2nd Dept. 1984), the Court held that the a demonstrated a need to conduct additional discovery proceedings in order to ascertain pertinent facts which pending discovery would reveal warrants a denial of summary judgment.
Summary of this case from Pac. Employers Ins. Co. v. N.Y. Prof'l Drywall Corp.Opinion
October 1, 1984
Appeal from the Supreme Court, Kings County (Bonomo, J.).
Order affirmed, with one bill of costs, without prejudice to renewal of the motion after completion of discovery proceedings instituted by Josephine Desiderio.
In our opinion the motion of plaintiff was properly denied in view of the need for Josephine Desiderio to conduct discovery proceedings to ascertain the pertinent facts concerning the issues of coverage and disclaimer, and because of the fact that, as recited in the affirmation in opposition submitted by Josephine Desiderio's attorney, such proceedings had been instituted by her and were pending at the time plaintiff moved for summary judgment (see CPLR 3212, subd. [f]). However, our affirmance is without prejudice to plaintiff's renewal of the motion after completion of those discovery proceedings, and to plaintiff's right to then reassert and establish that there is no policy covering Joseph Desiderio for the claims made by Catherine Fraggetta Catuogno in the latter's personal injury negligence suit against her. Thompson, J.P., Weinstein, Rubin and Lawrence, JJ., concur.