Opinion
2018–05388 Index No. 519779/16
07-31-2019
Howard RUTHERFORD, Plaintiff-Respondent, v. BROOKLYN NAVY YARD DEVELOPMENT CORPORATION, Defendant-Respondent, Monadnock Construction, Inc., Appellant.
Kaufman, Dolowich & Voluck, LLP, Woodbury, N.Y. (Matthew J. Minero of counsel), for appellant. Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and Joshua H. Stern of counsel), for defendant-respondent Brooklyn Navy Yard Development Corporation. Steven Wildstein, P.C., Great Neck, N.Y. (Michael Maiolica of counsel), for plaintiff—respondent Howard Rutherford.
Kaufman, Dolowich & Voluck, LLP, Woodbury, N.Y. (Matthew J. Minero of counsel), for appellant.
Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and Joshua H. Stern of counsel), for defendant-respondent Brooklyn Navy Yard Development Corporation.
Steven Wildstein, P.C., Great Neck, N.Y. (Michael Maiolica of counsel), for plaintiff—respondent Howard Rutherford.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Monadnock Construction, Inc., appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated March 20, 2018. The order, insofar as appealed from, denied as premature that branch of the motion of the defendant Monadnock Construction, Inc., which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, with leave to renew upon completion of discovery.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff commenced this action against the defendants Brooklyn Navy Yard Development Corporation (hereinafter Brooklyn Navy Yard Development) and Monadnock Construction, Inc. (hereinafter Monadnock), alleging violations of Labor Law §§ 200, 240, and 241, as well as common-law negligence. Prior to commencement of discovery, Monadnock moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court, among other things, denied as premature that branch of Monadnock's motion, with leave to renew upon completion of discovery. Monadnock appeals from so much of the order as denied that branch of its motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
"A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment" ( Salameh v. Yarkovski, 156 A.D.3d 659, 660, 64 N.Y.S.3d 569 ; see Okula v. City of New York, 147 A.D.3d 967, 968, 48 N.Y.S.3d 191 ; Brea v. Salvatore, 130 A.D.3d 956, 956, 13 N.Y.S.3d 839 ). "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" ( Brea v. Salvatore, 130 A.D.3d at 956, 13 N.Y.S.3d 839 ; see CPLR 3212[f] ; Salameh v. Yarkovski, 156 A.D.3d at 660, 64 N.Y.S.3d 569 ; Okula v. City of New York, 147 A.D.3d at 968, 48 N.Y.S.3d 191 ). "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" ( MVB Collision, Inc. v. Progressive Ins. Co., 129 A.D.3d 1040, 1041, 13 N.Y.S.3d 139 ; see Salameh v. Yarkovski, 156 A.D.3d at 660, 64 N.Y.S.3d 569 ; Antonyshyn v. Tishman Constr. Corp., 153 A.D.3d 1308, 1310, 61 N.Y.S.3d 141 ).
Here, Monadnock's motion was made before a preliminary conference was held, before any written discovery was exchanged, and before any depositions were taken. Further, the opposition papers submitted separately by the plaintiff and Brooklyn Navy Yard Development established that discovery with respect to several relevant issues raised by Monadnock in its motion, some of which were exclusively within the knowledge of Monadnock, was necessary to oppose Monadnock's motion. Thus, the plaintiff and Brooklyn Navy Yard Development were entitled to conduct discovery which may result in disclosure of relevant information.
Accordingly, we agree with the Supreme Court's determination to deny that branch of Monadnock's motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it as premature (see Groves v. Land's End Hous. Co., 80 N.Y.2d 978, 980, 592 N.Y.S.2d 643, 607 N.E.2d 790 ; Salameh v. Yarkovski, 156 A.D.3d at 660, 64 N.Y.S.3d 569 ; Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183 ; cf. Antonyshyn v. Tishman Const. Corp., 153 A.D.3d at 1310, 61 N.Y.S.3d 141 ).
SCHEINKMAN, P.J., AUSTIN, COHEN and HINDS–RADIX, JJ., concur.