Opinion
2019–01038 Index No. 2462/18
05-20-2020
Wilmer E. VILLALBA, Appellant, v. John ("Jack") R. BRADY, et al., Defendants, DM Carpentry Corp., Respondent.
Robert F. Danzi, Jericho, N.Y. (Christine Coscia of counsel), for appellant. O'Connor O'Connor Hintz & Deveney, LLP, Melville, N.Y. (Dawn C. Faillace–Dillon of counsel), for respondent.
Robert F. Danzi, Jericho, N.Y. (Christine Coscia of counsel), for appellant.
O'Connor O'Connor Hintz & Deveney, LLP, Melville, N.Y. (Dawn C. Faillace–Dillon of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated December 7, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendant DM Carpentry Corp. which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant DM Carpentry Corp. which was for summary judgment dismissing the complaint insofar as asserted against it is denied. The plaintiff commenced this action against the defendant DM Carpentry Corp. (hereinafter DM), among others, alleging violations of Labor Law §§ 200, 240, and 241, as well as common-law negligence. Prior to discovery, DM moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court, among other things, granted that branch of DM's motion.
"A party who contends that a summary judgment motion is premature is required to 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" ( Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770, 989 N.Y.S.2d 302 ; see Pinella v. Crescent St. Corp., 176 A.D.3d 985, 110 N.Y.S.3d 705 ).
Here, at the time that DM moved for summary judgment, no discovery had taken place, and depositions of the parties had not yet occurred. The papers submitted to the Supreme Court by the parties suggest that discovery might lead to relevant evidence (see Haxhijaj v. Ferrer, 166 A.D.3d 592, 593, 84 N.Y.S.3d 908 ; Martinez v. 305 W. 52 Condominium, 128 A.D.3d 912, 914, 9 N.Y.S.3d 375 ; Degen v. Uniondale Union Free Sch. Dist., 114 A.D.3d 822, 823, 980 N.Y.S.2d 790 ). Accordingly, the Supreme Court should have denied that branch of DM's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
BALKIN, J.P., LEVENTHAL, ROMAN and CONNOLLY, JJ., concur.