Berchini v. Silverite Construction Co.

289 A.D.2d 434, 735 N.Y.S.2d 405, 2001 N.Y. App. Div. LEXIS 12898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2001
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Palma, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated November 21, 2000, as denied that branch of its motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly denied the appellant’s motion for summary judgment on the ground that it was not negligent in the happening of the accident. The vague and conclusory assertions in the affidavits of the appellant’s president were insufficient to make a prima facie showing that the appellant did not leave a bag from which sand-like material had spilled on the floor causing the plaintiff to slip and fall at a site where it had performed construction work (see, Ayotte v Gervasio, 81 NY2d 1062; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Furthermore, the other parties established that they have not had an adequate opportunity to conduct discovery into several relevant issues, some of which are exclusively within the knowledge of the appellant (see, CPLR 3212 [f]; Firesearch Corp. v Micro Computer Controls Corp., 240 AD2d 365; Urcan v Cocarelli, 234 AD2d 537; Halpern Dev. Venture v Board of Trustees, 222 AD2d 652). Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.