Rodriguez v. Architron Envtl. Servs., Inc.

2018 NY Slip Op 7955

Opinion

Rodriguez v Architron Envtl. Servs., Inc. (2018 NY Slip Op 07955)

Rodriguez v Architron Envtl. Servs., Inc.

2018 NY Slip Op 07955

Decided on November 20, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2018
Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.

7671 160829/16

[*1]Dilsia Rodriguez, Plaintiff—Respondent,

v

Architron Environmental Services, Inc., Defendant—Appellant McGowan Builders, Inc., Defendant.

Edward B. Safran, New York, for appellant.

Law Office of Craig Rosuck, P.C., New York (Craig Rosuck of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered February 8, 2018, which denied the motion by defendant Architron Environmental Services, Inc. for summary judgment dismissing the action as against it, unanimously affirmed, without costs.

The summary judgment motion was premature and the motion court properly denied it on that basis. No discovery had been conducted before Architron moved for summary judgment; thus, plaintiff was not given a chance to depose two parties — defendants in a related action that has now been consolidated with this one — who might have knowledge concerning the relevant issues in this action (see Gonzalez v Vincent James Mgt. Co., Inc. , 306 AD2d 226 [1st Dept 2003]; La v New York Infirmary/Beekman Downtown Hosp. , 214 AD2d 425 [1st Dept 1995]).

Moreover, even if the documents that Architron submitted on its motion had sufficed to make a prima facie showing that it had completed its work at the site before plaintiff's alleged accident, plaintiff nonetheless had an acceptable excuse for not offering any countervailing facts to oppose the motion — namely, the lack of any opportunity to conduct discovery (see Gonzalez , 306 AD2d at 226).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 20, 2018

CLERK