Remember this post; down at the bottom.

Now consider Corwin v Heart Share Human Servs. of N.Y., 2009 NY Slip Op 07575 (App. Div., 2nd, 2009)

Furthermore, contrary to the defendants’ contention, the plaintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that discovery might lead [*2]to relevant evidence and that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff and the nonparty driver (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736). “[T]he defendants’ purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts” (Abramov v Miral Corp., 24 AD3d 397, 398; see Fenko v Mealing, 43 AD3d at 856). “The mere hope or speculation that evidence sufficient to defeat a motion . . . may be uncovered during the discovery process is insufficient to deny the motion” (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Marcel v Chief Energy Corp., 38 AD3d 502; Pina v Merolla, 34 AD3d 663).

So, for example, If a plaintiff makes a motion for summary judgment and the insurance company’s defense is medical necessity, fee schedule, IME no-show, EUO no-show, or the like, does it make any sense to deny plaintiff’s motion based upon a rule that a Summary Judgment motion is always premature if discovery outstanding.  Even if it is defendant’s motion for summary judgment, isn’t such a rule equally nonsensical.  Not in all cases.  In most cases.

Another decision:

Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (App. Div., 2nd, 2009)

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). During his examination of the plaintiff, the defendants’ orthopedic surgeon found restrictions in the range of motion of the plaintiff’s lumbar spine, which he described as “self-restricted.” However, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment without considering the sufficiency of the plaintiff’s opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538).

If the moving party does not meet it’s burden, the opposition papers could say “Mary had a little lamb, therefore the motion should be denied,” for all it matters.  Stole that phrase from Mr. Toell.  If on the other hand, the movant’s papers say “Mary had a little lamb, therefore the motion should be granted,” then the court should consider the merits, and deny the motion as being stupid.  Too many people don’t understand this.