Plotkin v. Franklin

179 A.D.2d 746, 579 N.Y.S.2d 123, 1992 N.Y. App. Div. LEXIS 529

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1992
• Status: Published

Opinion

On her motion for summary judgment dismissing the complaint, the defendant met her burden of submitting admissible proof that she did not direct or control the work of the contractor whom she hired to perform pointing work on the brick front of her two-family dwelling (see, Labor Law §§ 240, 241) and that the injury arose from a defect in the contractor’s own tools (see, Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145; Kajowski v Irvico Realty Corp., 37 AD2d 991; cf., Rimoldi v Schanzer, 147 AD2d 541, 546-547). We reject the plaintiff’s contention that summary judgment should have been denied because he had not deposed the contractor. Mere hope that somehow the plaintiff will uncover evidence that will prove a case provides no basis pursuant to CPLR 3212 (f) for postponing a determination of a summary judgment motion (see, Kennerly v Campbell Chain Co., 133 AD2d 669, 670).

We have reviewed the plaintiff’s remaining contentions and find them to be without merit. Balletta, J. P., Rosenblatt, Miller and Ritter, JJ., concur.