Senior Law Clerk
In Moshe Zuchaer and Monique Zuchaer v. Peninsula Condominium Association, Inc. (Fla. 3d DCA Mar. 25, 2026), the Third District delivered a clear message for Florida litigators: when summary judgment is on the table, a party cannot avoid it by simply saying discovery is still outstanding. To delay the ruling, the non-movant must diligently pursue the discovery, seek the proper relief, and explain what specific facts it expects to uncover that are essential to opposing summary judgment. Because the Zuchaers failed to do that, the Third DCA affirmed.
What happened:
This condominium dispute arose after water intrusion allegedly damaged the Zuchaers’ unit. The Association sued, and the Zuchaers counterclaimed, contending the damage stemmed from the Association’s failure to maintain and repair the main riser pipes. The Third DCA had previously reversed a default judgment against the Zuchaers and remanded the case in 2022.
After remand, however, the Zuchaers waited eleven months to serve discovery. When the Association responded with a motion for protective order, the Zuchaers did not set the dispute for hearing and did not move to compel responses. Ten more months passed. Only after the Association moved for summary judgment did the Zuchaers argue that the unresolved discovery prevented entry of judgment. But they never sought a continuance and never invoked Florida Rule of Civil Procedure 1.510(d) to explain why additional facts were essential to their opposition. The trial court also ruled that the pending discovery was not relevant to the dispositive issue of what caused the water intrusion.
Why it matters (for trial lawyers):
This opinion is a sharp reminder that “outstanding discovery” is not, by itself, a shield against summary judgment. The Third DCA emphasized that litigants have an affirmative obligation to move their cases forward and use the procedural tools available to them. A party that sits on discovery, fails to tee up discovery disputes, and does not seek a continuance under Rule 1.510(d) cannot later complain that summary judgment came too soon. As the court bluntly put it, “[o]ne cannot simply sit on his or her hands and expect a stalemate to last forever.”
Key points:
- A party cannot defeat summary judgment merely by pointing to outstanding discovery.
- The non-movant must diligently pursue discovery before claiming that summary judgment is premature.
- If more time is needed, the proper course is to seek relief under Rule 1.510(d), supported by an affidavit or declaration identifying the specific facts the party expects to obtain.
- Discovery that is not relevant to the dispositive issue will not save a case from summary judgment.
Takeaway:
When opposing summary judgment, do not rely on a generic complaint that discovery remains pending. Make the record. Serve discovery early. Move to compel when necessary. Set disputes for hearing. And if essential facts are still unavailable, file a Rule 1.510(d) affidavit or declaration that tells the court exactly what you need and why it matters. Zuchaer is a reminder that Florida courts reward diligence, not delay.
Stay sharp with us.
When summary judgment is looming, “we still have discovery out” is not enough. Preserve the issue the right way — or risk losing it altogether.
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