On November 22, 2022, Justice Gomez of the Bronx County Commercial Division issued a decision in Worbes Corp. v. Sebrow, 2022 NY Slip Op. 34003(U), holding that a party cannot move for summary judgment before a preliminary conference is held, explaining:
CPLR § 3212(f) mandates denial of a motion for summary judgment when a motion for summary judgment is patently premature, meaning when it is made prior to the preliminary conference, if no discovery has been exchanged. Under these circumstances, the proponent seeking denial of a motion as premature need not demonstrate what discovery is sought, that the same will lead to discovery of triable issues of fact or the efforts to obtain the same have been undertaken. In Bradley, the court denied plaintiff’s motion for summary judgment as premature, when the same was made prior to the preliminary conference. In McGlynn, the court denied plaintiff’s motion seeking summary judgment, when the same was made after the preliminary conference but before defendant had obtained any discovery whatsoever.
Here, as urged by defendants, plaintiffs’ motion is premature as a matter of law since the parties have yet to even attend a Preliminary Conference. In fact, a review of the Court’s file evinces that this case has not yet been scheduled for a Preliminary Conference and that no such conference has ever been held. Accordingly, contrary to plaintiffs’ assertion, because the parties have yet to appear for a Preliminary Conference, the instant motion is premature as a matter of law and must be denied. Notably, as evinced by plaintiffs’ arguments in support of their motion, they fail to appreciate the distinction between CPLR § 3212(f)’s application to cases which are premature as a matter of law – those where no Preliminary Conference has been held – and cases where there has been discovery – including a Preliminary Conference – and where denial on grounds of prematurity is then only warranted if the opponent of such motion can articulate what discovery has yet to be provided and how the same is dispositive. Based on the foregoing, defendants’ cross-motion must also be denied. Indeed, it is hard to fathom how, as urged by
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defendants during oral argument, this Court could deny plaintiffs’ motion as premature, while concomitantly granting defendants’ application for identical relief.