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Appellate Division,Second Department:July 6, 2022

Handdown List released on:July 6, 2022

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By Barros, J.P.; Chambers, Zayas, Dowling, JJ. TOBY E. GOLDFINGER, app, v. TOM C. FREELAND, ET AL., res — (Index No. 3904/19) Bruce S. Reznick (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac], of counsel), for appellant. DeCicco Gibbons & McNamara, P.C., Oakland Gardens, NY (William A. Fitzgerald of counsel), for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dawn Jimenez-Salta, J.), dated July 28, 2020. The order denied the plaintiff’s motion for summary judgment on the issue of liability. ORDERED that the order is modified, on the law, by adding a provision thereto that the denial of the plaintiff’s motion for summary judgment on the issue of liability is without prejudice to renewal upon the completion of discovery; as so modified, the order is affirmed, without costs or disbursements. “Should it appear from affidavits submitted in opposition to [a] motion [for summary judgment] that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just” (CPLR 3212[f]; see Chander v. Eagle Sanitation Inc., 153 AD3d 658; Brea v. Salvatore, 130 AD3d 956; Malester v. Rampil, 118 AD3d 855, 856). Under the circumstances of this case, the Supreme Court should have denied the plaintiff’s motion for summary judgment on the issue of liability without prejudice to renewal upon the completion of discovery. BARROS, J.P., CHAMBERS, ZAYAS and DOWLING, JJ., concur.

By Dillon, J.P.; Barros, Christopher, Zayas, JJ.

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