Speirs v. Not Fade Away Tie Dye Co. — 236 A.D.2d 531

Majority

p. 531

Gregory Speirs, Respondent, v Not Fade Away Tie Dye Co., Inc., et al., Appellants.

[654 NYS2d 638]

—In an action, inter alia, to recover damages for fraud, the defendants appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered May 8, 1996, which denied their motion for summary judgment dismissing the complaint without prejudice to renewal after the completion of discovery and granted the plaintiff’s cross motion for leave to serve a second amended complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendants’ motion for summary judgment without prejudice to renewal after the

p. 532

completion of discovery. As the moving parties, the defendants were required to tender evidentiary proof in admissible form sufficient to warrant judgment in their favor as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557 ). The defendants relied upon a computer printout to refute the plaintiffs allegations. However, as the defendants did not establish a sufficient foundation for admissibility of the printout as a business record (see, CPLR 4518 [a]; see generally, People v Kennedy, 68 NY2d 569 , 578-580), they failed to meet their burden of proof.

Even if the defendants had met their initial burden of proof, at this early stage of the proceedings the denial of summary judgment was appropriate pursuant to CPLR 3212 (f) since much of the proof necessary to enable the plaintiff to demonstrate triable issues of fact was within the exclusive knowledge of the defendants (see, Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187 , 194; Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 168 AD2d 121 , 137; cf., Meath v Mishrick, 68 NY2d 992 ).

Finally, the Supreme Court properly granted the plaintiff’s cross motion for leave to serve a second amended complaint (see, McCasky, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 ; CPLR 3025 [b]). O’Brien, J. P., Joy, Friedmann and Florio, JJ., concur.

Cases cited

Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 p. 532
People v. Kennedy 68 NY2d 569 N.Y. 1986-12-19 at 578-580 p. 532
Jered Contracting Corp. v. New York City Transit Authority 22 NY2d 187 N.Y. 1968-05-29 at 194 p. 532
Liberty Mutual Insurance v. Aetna Casualty & Surety Co. 168 AD2d 121 N.Y. App. Div. 1991-05-31 at 137 p. 532
Meath v. Mishrick 68 NY2d 992 N.Y. 1986-11-25 p. 532
McCaskey, Davies & Associates, Inc. v. New York City Health & Hospitals Corp. 59 NY2d 755 N.Y. 1983-05-11 p. 532