Opinion
7502– 7502A Index 153717/16
10-30-2018
Meri MARABYAN, Plaintiff–Respondent, v. 511 WEST 179 REALTY CORP., Defendant, DirecTV, LLC, et al., Defendants–Appellants.
Lynch Rowin LLP, New York (Marc Rowin of counsel), for DirecTV, LLC, appellant. Thorn Gershon Tymann & Bonanni, LLP, Albany (Matthew H. McNamara of counsel), for Dish Network L.L.C., appellant. Law Office of Yuriy Prakhin P.C., Brooklyn (Yuriy Prakhin of counsel), for respondent.
Lynch Rowin LLP, New York (Marc Rowin of counsel), for DirecTV, LLC, appellant.
Thorn Gershon Tymann & Bonanni, LLP, Albany (Matthew H. McNamara of counsel), for Dish Network L.L.C., appellant.
Law Office of Yuriy Prakhin P.C., Brooklyn (Yuriy Prakhin of counsel), for respondent.
Acosta, P.J., Friedman, Kapnick, Webber, Moulton, JJ.
Orders, Supreme Court, New York County (Gerald Lebovits, J.), entered February 22 and 23, 2018, which denied defendant DirecTV, LLC's motion for summary judgment dismissing the complaint as against it and defendant Dish Network L.L.C.'s motion to dismiss for failure to state a cause of action and for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs, without prejudice to renewal after further discovery.
We agree with Supreme Court that defendants' respective motions for summary judgment should have been denied; not because issues of fact exist, but rather as premature, no employee of either movant has been deposed, and installation, repair, and/or maintenance records may also shed light on what work, if any, defendants undertook at the accident location, and when. Plaintiff therefore satisfied her burden of demonstrating that facts essential to oppose defendants' motions may lie within defendants' exclusive knowledge and/or control (see CPLR 3212[f] ; Figueroa at 439; Brooks v. Somerset Surgical Assoc., 106 A.D.3d 624, 966 N.Y.S.2d 65 [1st Dept. 2013] ).
We also agree with the motion court's denial of that branch of Dish Network's motion which was to dismiss for failure to state a cause of action, since Dish Network failed to meet its burden of establishing that the amended complaint does not adequately plead a claim against it (see Connolly v. Long Is. Power Auth., 30 N.Y.3d 719, 728–730, 70 N.Y.S.3d 909, 94 N.E.3d 471 [2018] ).