Opinion
13366 Index No. 31033/17E Case No. 2020-04000
03-16-2021
Millicent THOMAS, Plaintiff–Respondent, v. TRIBORO MAINTENANCE CORPORATION, Defendant–Appellant, Church of St. John–Visitation Parish, Defendant–Respondent.
Montfort, Healy, McGuire & Salley LLP, Garden City ( John W. Hoefling of counsel), for appellant. Rubenstein & Rynecki, Brooklyn ( Harper A. Smith of counsel), for Millicent Thomas, respondent. Hardin, Kundla, McKeon & Poletto, P.A., New York (Eric J. Koplowitz of counsel) for Church of St. John–Visitation Parish, respondent.
Montfort, Healy, McGuire & Salley LLP, Garden City ( John W. Hoefling of counsel), for appellant.
Rubenstein & Rynecki, Brooklyn ( Harper A. Smith of counsel), for Millicent Thomas, respondent.
Hardin, Kundla, McKeon & Poletto, P.A., New York (Eric J. Koplowitz of counsel) for Church of St. John–Visitation Parish, respondent.
Manzanet–Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered on or about May 14, 2020, which denied the motion of defendant Triboro Maintenance Corporation (Triboro) for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.
Triboro failed to carry its prima facie burden of showing, as a matter of law, that it did not entirely displace the tenant's duty to maintain the premises safely because, among other things, it is unclear what work Triboro was authorized to undertake without prior approval ( see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ; XX v. Dunwell El. Elec. Indus., Inc., 188 A.D.3d 443, 445–446, 135 N.Y.S.3d 372 [1st Dept. 2020] ; Ileiwat v. PS Marcato El. Co., Inc., 178 A.D.3d 517, 519, 115 N.Y.S.3d 269 [1st Dept. 2019] ; Stevanovic v. T.U.C. Mgt. Co., 305 A.D.2d 133, 134, 758 N.Y.S.2d 59 [1st Dept. 2003] ). Triboro's motion was also premature as depositions had not yet been held and the record revealed that that facts essential to oppose the motion likely lie within the exclusive knowledge and control of Triboro and the tenant ( see e.g. Guzman v. City of New York, 171 A.D.3d 653, 653, 99 N.Y.S.3d 286 [1st Dept. 2019] ; CPLR 3212[f] ).