Metichecchia v. Palmeri

Appellate Division of the Supreme Court of New York

Metichecchia v. Palmeri

23 A.D.3d 894, 803 N.Y.S.2d 813

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 17, 2005

StatusPublished

Cited by11 cases

This text of 23 A.D.3d 894 (Metichecchia v. Palmeri) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Metichecchia v. Palmeri, 23 A.D.3d 894, 803 N.Y.S.2d 813 (N.Y. Ct. App. 2005).

Pincite

Opinion

Crew III, J.

Appeal from an order of the Supreme Court (Bradley, J.), entered February 7, 2005 in Ulster County, which denied defendant Frank Palmeri’s motion for summary judgment dismissing the complaint against him.

On February 16, 2004, plaintiff Armand Metichecchia, a Verizon employee making a service call, entered the front door of premises owned by defendant Frank Palmeri in the Town of Hurley, Ulster County, and fell through an opening in the floor that led to the basement. A trap door, which ordinarily covered the opening, had been left in the raised position.

[895]*895Consequently, Metichecchia and his wife, derivatively, commenced this personal injury action against Palmeri, the owner and lessor of the property in question, defendant Donna Rowe, the lessee, and defendant Alyn Warren, a resident of the property at the time of the incident. Prior to discovery, Palmeri moved for summary judgment dismissing the complaint on the ground that, as an out-of-possession landlord, no liability could attach to him. Plaintiffs opposed the motion contending, among other things, that it was premature given the lack of relevant discovery. Supreme Court denied Palmeri’s motion without prejudice to renew at the completion of discovery. Palmeri now appeals and we affirm.

It is axiomatic that a summary judgment motion is properly denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant or a codefendant (see Catena v Amsterdam Mem. Hosp., 6 AD3d 1037, 1038-1039 [2004]). Here, plaintiffs surely are entitled to ascertain, through discovery, Palmeri’s knowledge of the allegedly dangerous condition, as well as the degree of control that he asserted over the premises. Accordingly, Supreme Court properly denied Palmeri’s motion on the ground of prematurity.

Cardona, P.J., Mercure, Carpinello and Rose, JJ., concur. Ordered that the order is affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Crew III, J.

Appeal from an order of the Supreme Court (Bradley, J.), entered February 7, 2005 in Ulster County, which denied defendant Frank Palmeri’s motion for summary judgment dismissing the complaint against him.

On February 16, 2004, plaintiff Armand Metichecchia, a Verizon employee making a service call, entered the front door of premises owned by defendant Frank Palmeri in the Town of Hurley, Ulster County, and fell through an opening in the floor that led to the basement. A trap door, which ordinarily covered the opening, had been left in the raised position.

[895]*895Consequently, Metichecchia and his wife, derivatively, commenced this personal injury action against Palmeri, the owner and lessor of the property in question, defendant Donna Rowe, the lessee, and defendant Alyn Warren, a resident of the property at the time of the incident. Prior to discovery, Palmeri moved for summary judgment dismissing the complaint on the ground that, as an out-of-possession landlord, no liability could attach to him. Plaintiffs opposed the motion contending, among other things, that it was premature given the lack of relevant discovery. Supreme Court denied Palmeri’s motion without prejudice to renew at the completion of discovery. Palmeri now appeals and we affirm.

It is axiomatic that a summary judgment motion is properly denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant or a codefendant (see Catena v Amsterdam Mem. Hosp., 6 AD3d 1037, 1038-1039 [2004]). Here, plaintiffs surely are entitled to ascertain, through discovery, Palmeri’s knowledge of the allegedly dangerous condition, as well as the degree of control that he asserted over the premises. Accordingly, Supreme Court properly denied Palmeri’s motion on the ground of prematurity.

Cardona, P.J., Mercure, Carpinello and Rose, JJ., concur. Ordered that the order is affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

23 A.D.3d 894, 803 N.Y.S.2d 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metichecchia-v-palmeri-nyappdiv-2005.

Opinion

Related

Cite This Page — Counsel Stack