OSGOOD, JERRY v. KDM DEVELOPMENT CORP

92 A.D.3d 1222, 938 N.Y.2d 397, 938 N.Y.S.2d 397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2012
• Docket: CA 11-01565
• Status: Published

Opinion

Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell from a ladder while installing siding on a mobile home (home). The home was located in a mobile home park owned by defendant and third-party plaintiff Tuscarora Village MHI] LLC and managed by defendant and third-party plaintiff KDM Development Corp. Defendant and third-party plaintiff Tuscarora Village Manufactured Home Sales, Inc. sold mobile homes to customers at the mobile home park, and the home on which plaintiff was working at the time of his accident was brokered by third-party defendant Royal Manufactured Home Sales, Inc. (Royal). Defendants commenced the third-party action seeking, inter alia, common-law indemnification and contribution from Royal, and Royal moved for summary judgment dismissing the third-party complaint against it. Supreme Court denied the motion, and we reverse.

Even assuming, arguendo, that Royal is the owner of the home for purposes of the Labor Law, we conclude that Royal met its initial burden on the motion by submitting evidence that it did not supervise or control the injury-producing work, and that it did not provide the ladder from which plaintiff fell (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378 [2011]; see generally Zuckerman u City of New York, 49 NY2d 557, 562 [1980]; Carro v Lyons Falls Pulp & Paper, Inc., 56 AD3d 1276, 1277-1278 [2008]). Defendants and third-party plaintiffs (defendants) failed to raise a triable issue of fact in opposition to the motion (see generally Zuckerman, 49 NY2d at 562). Defendants contend, as an alternative ground for affirmance, that the motion should be denied because Royal failed to submit the bill of particulars in support of its motion (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]; Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d 1129, 1130 [2006]). We reject that contention. “ ‘[A] bill of particulars is not a pleading, but just an expansion of one’ ” (Abbotoy v Kurss, 52 AD3d 1311, 1312 [2008], quoting Siegel, NY Prac § 238, at 401 [4th ed]), and thus Royal’s failure to support its motion with a copy thereof does not require denial of the motion (see generally CPLR 3212 [b]; D.J. Enters. of WNY v Benderson, 294 AD2d 825 [2002]; Niles v County of Chautauqua, 285 AD2d 988 [2001]). Present — Centra, J.E, Fahey, Eeradotto, Garni and Martoche, JJ.