Opinion
March 10, 1986
Appeal from the Supreme Court, Nassau County (Velsor, J.).
Order reversed, on the law, with costs, motion granted, and third-party action dismissed insofar as it is asserted against the appellant.
An examination of the defendant third-party plaintiff's affirmation in opposition to the appellant's motion for summary judgment reveals no triable issue of fact. It is of special interest to this court that in that affirmation in opposition it is admitted that "Defendant, third-party plaintiff, Wall Industries, Inc. has recently discovered that the filaments used to manufacture the subject rope may not have been manufactured by third-party defendant, DuPont and said third party defendant may therefore be an improper party to this action". An "unsubstantiated possibility [constituting] mere speculation [is] insufficient to defeat" a motion for summary judgment (Mack v. American Handling Equip., 69 A.D.2d 853). Therefore, Special Term should have granted the motion.
Although Special Term did not specifically determine whether the defendant third-party plaintiff had complied with its order entered December 10, 1984, to fully respond to the appellant's interrogatories and notice for discovery and inspection, this court's scope of review in a discretionary matter is co-extensive with that of Special Term (Majauskas v. Majauskas, 61 N.Y.2d 481, 493-494), and we may exercise our discretion independently (Broida v. Bancroft, 103 A.D.2d 88). We find, on the facts in this record, that the defendant third-party plaintiff fully complied with that order of Special Term. Therefore, the appellant's argument that the third-party action should have been dismissed insofar as it is asserted against it as a sanction for failure to comply is without merit. Thompson, J.P., Bracken, Weinstein and Eiber, JJ., concur.