Romeo v. City of New York — 261 A.D.2d 379

Majority

p. 379

Edward Romeo et al., Appellants, v City of New York et al., Defendants, and Brooklyn Union Gas Co., Defendant and Third-Party Plaintiff-Respondent. Hallen Construction Co. et al., Third-Party Defendants.

[689 NYS2d 517]

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 9, 1998, as denied their cross motion, inter alia, to strike the answer of the defendant Brooklyn Union Gas Company, and granted the cross motion of the defendant Brooklyn Union Gas Company for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs’ contention, the cross motion of the defendant Brooklyn Union Gas Company (hereinafter Brooklyn Union) for summary judgment dismissing the complaint insofar as asserted against it was properly granted notwithstanding the fact that discovery had not yet been completed, since “ ‘there was only hope and speculation as to what additional discovery would uncover in the present situation’ ” (Quinones v Board of Educ., 248 AD2d 696 ; see, Mazzaferro v Barterama Corp., 218 AD2d 643 ; see also, Toth v Pergament Home Ctr., 250 AD2d 599 ).

Insofar as the plaintiffs contend that Brooklyn Union failed

p. 380

to comply with discovery demands, “[a party] may not be compelled to produce information that does not exist or which he [or she] does not possess” (Corriel v Volkswagen of Am., 127 AD2d 729 , 731; see, Lauro v Top of the Class Caterers, 169 AD2d 708 ; Rosado v Mercedes-Benz of N. Am., 103 AD2d 395 , 398). Accordingly, the cross motion to strike the answer of Brooklyn Union on that ground was properly denied. Bracken, J. P., Thompson, Joy and Luciano, JJ., concur.

Cases cited

Quinones v. Board of Education 248 AD2d 696 N.Y. App. Div. 1998-03-30 p. 379
Corriel v. Volkswagen of America, Inc. 127 AD2d 729 N.Y. App. Div. 1987-02-17 at 731 p. 380
Lauro v. Top of the Class Caterers, Inc. 169 AD2d 708 N.Y. App. Div. 1991-01-14 p. 380
Rosado v. Mercedes-Benz of North America, Inc. 103 AD2d 395 N.Y. App. Div. 1984-10-01 at 398 p. 380