Opinion
2018–00826 Index No. 707796/16
10-30-2019
Jose COELHO, et al., Respondents, v. CITY OF NEW YORK, Appellant.
Barry McTiernan & Moore LLC, New York, N.Y. (David H. Schultz of counsel), for appellant. Antin, Ehrlich & Epstein, LLP, New York, N.Y. (Scott W. Epstein of counsel), for respondents.
Barry McTiernan & Moore LLC, New York, N.Y. (David H. Schultz of counsel), for appellant.
Antin, Ehrlich & Epstein, LLP, New York, N.Y. (Scott W. Epstein of counsel), for respondents.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered December 12, 2017. The order denied, as premature, its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment dismissing the complaint is granted, and an order of the same court (Ulysses B. Leverett, J.), entered November 16, 2018, inter alia, denying the defendant's subsequent motion for summary judgment dismissing the complaint, is vacated.
The plaintiff Jose Coelho (hereinafter the plaintiff) was employed as a foreman for nonparty ECCO III Enterprises, Inc., a contractor hired by nonparty State of New York to perform paving work on the Van Wyck Expressway in Queens. The plaintiff allegedly was injured when an asphalt roller collided with the rear of the asphalt paving vehicle upon which he was working, coming into contact with his right leg.
Following a statutory hearing pursuant to General Municipal Law § 50–h at which the plaintiff provided sworn testimony, the plaintiff, and his wife suing derivatively, commenced this action against the defendant, City of New York, alleging violations of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence. Prior to discovery, the City moved for summary judgment dismissing the complaint, submitting various exhibits and contending that it was not an "owner" or "contractor" as contemplated by the Labor Law, nor did it supervise or have any involvement in the plaintiff's work on the Van Wyck Expressway. In an order entered December 12, 2017, the Supreme Court denied the City's motion as premature. The City appeals.
The City established its prima facie entitlement to judgment as a matter of law dismissing the complaint through evidence demonstrating that the New York State Department of Transportation was in charge of the project involving the paving of the Van Wyck Expressway, that the City was not a party to the contract governing the project, and that the City did not perform any of the construction, did not hire the plaintiff's employer, and did not supervise, direct, or control any aspect of the work (see Albanese v. City of New York, 5 N.Y.3d 217, 220–221, 800 N.Y.S.2d 538, 833 N.E.2d 1213 ; Duarte v. City of New York, 34 A.D.3d 522, 523, 826 N.Y.S.2d 314 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Duarte v. City of New York, 34 A.D.3d at 523, 826 N.Y.S.2d 314 ).
Moreover, the City's motion for summary judgment was not premature. "A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" ( Salameh v. Yarkovski, 156 A.D.3d 659, 660, 64 N.Y.S.3d 569 ; see CPLR 3212[f] ; Ingram v. Bay Ridge Auto. Mgt. Corp., 145 A.D.3d 672, 672–673, 41 N.Y.S.3d 902 ). "A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" ( Antonyshyn v. Tishman Constr. Corp., 153 A.D.3d 1308, 1310, 61 N.Y.S.3d 141 [internal quotation marks omitted]; see Rungoo v. Leary, 110 A.D.3d 781, 783, 972 N.Y.S.2d 672 ). Here, the plaintiffs failed to make the requisite showing (see Haidhaqi v. Metropolitan Transp. Auth., 153 A.D.3d 1328, 62 N.Y.S.3d 408 ).
Accordingly, the Supreme Court should have granted the City's motion for summary judgment dismissing the complaint.
MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.