This one is from my friend Allan Hollander. Good job. I apologize for my delay in posting. I got caught up for three weeks on a preliminary injunction motion on a case that consumed me. Anyhow, that is not relevant to the readers. Here is Beacon:
Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 2019 NY Slip Op 06942 (4th Dept. 2019)
(1) “Plaintiff commenced this action seeking a declaration that it was not obligated to pay certain insurance claims related to a motor vehicle accident in which, as relevant here, defendant Quentin Walker was allegedly injured. Plaintiff moved for summary judgment on the complaint against defendants-respondents (defendants), which provided healthcare services or medical equipment to Walker, and defendant Nu Age Medical Solutions, Inc. After noting that the “issue [was] limited to the bills relating to” Walker, Supreme Court denied the motion with respect to defendants. In its order, the court determined that, although plaintiff had met its initial burden and defendants had failed to raise a triable issue of fact in opposition, the motion was premature with respect to defendants. Plaintiff now appeals from the order insofar as it denied the motion in part.”
(2) We agree with plaintiff that its motion was not premature inasmuch as defendants failed to demonstrate that ” discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of’ ” plaintiff (Gannon v Sadeghian, 151 AD3d 1586, 1588 [4th Dept 2017]). ” Mere hope that somehow the [nonmovant] will uncover evidence that will [help its] case provides no basis . . . for postponing a determination of a summary judgment motion’ ” (Mackey v Sangani, 238 AD2d 919, 920 [4th Dept 1997]). Further, we agree with the court that plaintiff met its burden as movant and that defendants failed to raise a triable issue of fact
