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Cardone v. Poidamani

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


May 11, 2010

JACQUELINE CARDONE, PLAINTIFF-RESPONDENT,
v.
JOHN POIDAMANI, DEFENDANT-RESPONDENT, ROBERT BARBERESI, ET AL., APPELLANTS.

In an action to recover damages for personal injuries, the defendants Robert Barberesi and Steven Barberesi appeal from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated April 28, 2008, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

HOWARD MILLER, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, PLUMMER E. LOTT, JJ.

(Index No. 103938/07)

DECISION & ORDER

ORDERED that the order is modified, on the facts and in the exercise of discretion, by adding to the first decretal paragraph thereof after the word "denied," the words "without prejudice to renewal after completion of discovery;" as so modified, the order is affirmed insofar as appealed from, with one bill of costs.

This case arises from a motor vehicle accident involving three vehicles. The plaintiff claims that she was stopped at a traffic light when her vehicle was struck from behind by a vehicle owned by the defendant Robert Barberesi, and driven by the defendant Steven Barberesi, after the latter vehicle was struck from behind by a vehicle owned and driven by the defendant John Poidamani. Prior to depositions, the Barberesis moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied the motion, concluding that it was premature. We modify.

We agree with the Supreme Court that it would have been premature to award summary judgment at this stage of the case. Among other things, the plaintiff and Steven Barbaresi submitted affidavits containing discrepancies pertaining to the circumstances of the accident, and Poidamani died during the pendency of the action. Furthermore, the plaintiff and Steven Barbaresi have yet to be deposed. Accordingly, the motion was properly denied (see Martinez v Ashley Apts. Co., LLC, 44 AD3d 830; Tyme v City of New York, 22 AD3d 571; see generally CPLR 3212[f]). Under the circumstances of this case, we modify the order to provide that the denial of the motion is without prejudice to renewal after completion of discovery.

MILLER, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

20100511

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