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Waiting to conduct discovery fatal to 3212(f) claimOctober 10, 2018

Williams v New York City Tr. Auth., 2018 NY Slip Op 51286(U) (App. Term 2d Dept. 2018)

Inaction is acquiescence.

“At the outset, we reject plaintiff’s argument that defendant’s motion should be denied as premature on the ground that discovery was not yet complete (see CPLR 3212 [f]), and that plaintiff should be allowed to depose defendant’s employee and obtain certain documents. ” ‘A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue’ ” (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006], quoting Cruz v Otis El. Co., 238 AD2d 540 [1997]; see also Douglas Manor Assn. v Alimaras, 215 AD2d 522 [1995]; Stevens v Hilmy, 185 AD2d 840 [1992]). Plaintiff did not schedule the deposition or obtain the documents in question in the three years that the action had been pending before defendant made the summary judgment motion. Thus, plaintiff’s “own inaction is responsible for [his] failure to ascertain any facts” necessary to defeat defendant’s motion (Stevens v Hilmy, 185 AD2d at 842).”

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