Glazman v. Henry Lehr, Ltd.

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered on January 3, 1990, which denied the motion of defendant TLH, Inc. for summary judgment without prejudice to renewal after an opportunity for discovery, unanimously affirmed, without costs. The instant action arises out of a claim by plaintiff that he was assaulted by a security guard at a store owned by defendant Henry Lehr, Ltd. According to the sworn affidavit of plaintiffs investigator, the employees of the store told him that the guard was employed at the time of the assault by defendant TLH, Inc. TLH presented evidence that the guard, though a former employee, was not employed by them at the time of the incident. It also submitted the sworn affidavit of its president stating that it had ceased providing security services to the store a few weeks before the incident. However, further evidence showed that security services provided by TLH, Inc. to other premises owned by Henry Lehr, Ltd. had been terminated on the very date of the alleged assault. Under these circumstances the court properly denied TLH, Inc.’s motion for summary judgment without prejudice to renewal after discovery. (See, CPLR 3212 [f].) Concur—Ross, J. P., Rosenberger, Asch, Kassal and Wallach, JJ.