Vitale v. 3800 Broadway Assoc., LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 4, 2018
• Docket: 2018 NYSlipOp 51401(U)
• Status: Published

Opinion

John Vitale, Plaintiff-Appellant,

against

3800 Broadway Associates, LLC, Jordan Daniels Electrical Contractors, Inc., Fleet National Bank n/k/a Bank of America, N.A., Bank of America, N.A., as successor by merger to Fleet National Bank, Bank of America Corporation and BNF Contractors, Inc., Defendants-Respondents, and Verizon Communications Inc., Defendant. Bank of America, N.A., Third-Party Plaintiff-Respondent, and BNF Contractors, Inc., Third-Party Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered March 22, 2017, which granted defendants' cross motions for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered March 22, 2017, reversed, without costs, and the [*2]cross motions denied without prejudice to renewal after completion of discovery.

Plaintiff, an electrical apprentice, injured his back while transporting heavy pipes from and into areas involving different elevation levels.

The motion court should have denied defendants' motions for summary judgment as premature, since the record indicates that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]). As no representatives from defendants have been deposed, all of the relevant contracts have not been produced, and the record suggests that crucial facts may be within defendants' knowledge, additional discovery is necessary (see Jackson v Hunter Roberts Constr. Group, LLC, 161 AD3d 666, 667 [2018]; Solano v Skanska USA Civ. Northeast Inc., 148 AD3d 619, 619-620 [2017]; Rodriguez v Coalition for Father Duffy, LLC, 112 AD3d 407, 408 [2013]; Ali v Effron, 106 AD3d 560 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 04, 2018