Opinion
Index 618370/2017
07-06-2020
KATHLEEN MCCLOAT, Plaintiff, v. SCC CONSTRUCTION MANAGEMENT GROUP d/b/a SCHOOL CONSTRUCTION CONSULTANTS, PALACE ELECTRICAL CONTRACTORS, INC., RENU CONTRACTING & RESTORATION, INC., and HIRSCH & CO., LLC, Defendants.
SALENGER, SACK, KIMMEL & BAVARO, LLP Attys for Plaintiff L'ABBATE, BALKAN, C0LAVITA & CONTINI, LLP Attys. for Defendant SCC Construction JOHN C. LEDDY, ESQ. Attys. for Defendant Hirsch & Co. LW OFFICES OF KEVIN P. WESTERMAN Attys. for Defendant Palace Electrical KENNEDY CMK, LLP Attys. for Defendant' RENU Contracting
Unpublished Opinion
MOTION DATE 8-23-19
SUBMIT DATE 6-18-2020
SALENGER, SACK, KIMMEL & BAVARO, LLP Attys for Plaintiff
L'ABBATE, BALKAN, C0LAVITA & CONTINI, LLP Attys. for Defendant SCC Construction
JOHN C. LEDDY, ESQ. Attys. for Defendant Hirsch & Co.
LW OFFICES OF KEVIN P. WESTERMAN Attys. for Defendant Palace Electrical
KENNEDY CMK, LLP Attys. for Defendant' RENU Contracting
PRESENT: Hon. JOSEPH A. SANTORELLI Justice of the Supreme Court
SHORT FORM ORDER
HON. JOSEPH A. SANTORELLI J.S.C.
Upon the following papers numbered 1 to 82 read on this motion for summary judgment: Notice of Motion/ Order to Show Cause arid supporting papers 1-13 (#04)-& 41-51 (#05): Notice of Cross Motion and supporting papers; =: Answering Affidavits: and supporting papers 14-16 & 17-32 (#04), 52 - 67 & 68 -71 (#051: Replying Affidavits and supporting papers 33 - 40 (#04) & 72 - 82 (#05): Other___; (and after hearing-counsel-in support-and opposed to the motion)-it is, Defendant, Hirsch & Co, LLC, hereinafter referred to as "Hirsch", moves for ah order granting summary judgment dismissing all claims and cross claims against it. Defendant, Renu Contracting & Restoration, Inc., hereinafter referred to as "Renu", separately moves for an order granting summary judgment dismissing all claims and cross claims against it. The plaintiff opposes both motions arguing that the motions are premature because discovery has not been completed and that questions of fact remain as to the exact location where work was being done by these defendants. Defendant SCC Construction Management Group d/b/a School Construction Consultants, hereinafter referred to as "SCC", filed opposition to both motions arguing that the motions are premature because they were made prior to meaningful discovery being exchanged.
The plaintiff seeks die recovery of damages for personal injuries allegedly sustained as a result of an accident on April IT, 2016 when a "dangerous wooden object" fell on her head while she was at work at Wellington C. Mepham High School located at 2401 Camp Avenue, Belhnore, New York. "At approximately 11:50 am while Plaintiff was having lunch with her colleagues, a wooden object sharply fell on the Plaintiff s head due to construction work being performed by defendants." The plaintiff claims that while she was sitting in the guidance office the object fell due to ongoing construction within the bathrooms adjacent to the guidance office. SCC claims that meaningful discovery has not been exchanged 'that is in the possession of the moving defendants and is necessary to me defense of this action.
CPLR §3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of die pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment (Olan v. Farrell Lines, Inc., 105 AD 2d 653, 481NYS 2d 370 (1 Dept., 1984; aff'd 64NY 2d 1092, 489 N.Y.S.2d 884 (1985); Spearman v. Times Square Stores Corp., 96 AD 2d 552, 465 NYS 2d230 (2
Dept., 1983); Weinstein-Korn-Miller, New York Civil Practice Sec. 3212.09)).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the Case (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]), To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Once such proof has been offered, the burden then shifts to die opposing party, who, in order to defeat die motion for summary judgment, must proffer evidence in admissible form ... .and must"show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp, v Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 NE 2d512 [1988]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that die matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence; submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4m Dept 1983]).
On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue(see S. J. Capelin Associates Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313NE2d776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]), If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Click & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985], aff'd, 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282).
In Colombini v Westchester County Healthcare Corp., 24 A.D.3d 712, 715 [2d Dept 2005], the Court held that
Summary judgment should be denied as premature where, as here, the party opposing the motion has not had an adequate opportunity to conduct discovery (seeCPLR3212 [f]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 506, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993]; OK Petroleum Distrib. Corp. v Nassau/Suffolk Fuel Oil Corp., 17 A.D.3d 551, 793 N.Y.S.2d 152 [2005]; Mazzola v Kelly, 291 A.D.2d 535, 738 N.Y.S.2d 246 [2002]).
The Court in Gardner v Cason, Inc., 82 A.D.3d 930, 931-932 [2d Dept 2011], held
It was premature to award summary judgment at this stage of the case. "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated V& of Freeport, 143 A.D.2d 792, 793, 533 N.Y.S.2d 143 [1988]), The plaintiff and the defendant Grumbly submitted, among other things, affidavits containing discrepancies pertaining to the circumstances of the accident, including as to the decedent's culpability. Furthermore, no depositions have been conducted, including any depositions of key eyewitnesses identified in the police accident report. Accordingly, the Supreme Court should have denied the plaintiff s motion for summary judgment on the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v City of New Rochelle, 72 A.D.3d 1025, 900 N.Y.S.2d 144 [2010]; Aurora Loan Servs., LLC v LaMaitina & Assoc., Inc., 59 A.D.3d 578, 872 N.Y.S.2d 724 [2009]; Martinez v Ashley Apts. Co., LLC, 44 A.D.3d 830, 842 N.Y.S.2d 918 [2007]; Tyme v City Of New York, 22 A.D.3d 571, 801 N.Y.S.2d 744 [2005]; see generally CPLR 3212 [f]).
Based upon a review of the motion papers the Court concludes that the plaintiff and SCC have not had an adequate opportunity to conduct discovery into issues within the knowledge of defendants Hirsch and Renu as to the whether they were performing work in the area where the plaintiff Was sitting when the wooden object fell. Thus the motions for summary judgment are denied with leave to renew after the completion of discovery; and it is further
ORDERED that a compliance Conference is scheduled for August 13, 2020. All attorneys shall appear on August 13, 2020 at 12:00 p.m. for a telephone conference as part of the above-referenced action. Attorneys appearing must have knowledge of the case and be authorized to discuss details regarding this action. A failure to appear may result in the matter being dismissed or a default being granted. Please call in at the above referenced date and time to (347) 378-4143, access code 969774992#.
The foregoing constitutes the decision and Order of the Court.