Waggoner v. Lancet Arch, Inc.

Appellate Division of the Supreme Court of New York

Waggoner v. Lancet Arch, Inc.

291 A.D.2d 831, 737 N.Y.S.2d 317

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

DecidedFebruary 1, 2002

StatusPublished

Cited by5 cases

This text of 291 A.D.2d 831 (Waggoner v. Lancet Arch, Inc.) 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

Waggoner v. Lancet Arch, Inc., 291 A.D.2d 831, 737 N.Y.S.2d 317 (N.Y. Ct. App. 2002).

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Opinion

—Appeals from an order of Supreme Court, Erie County (Fallon, J.), entered December 29, 2000, which granted plaintiffs motion for partial summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted plaintiffs motion for partial summary judgment on liability on the Labor Law § 240 (1) claim. Contrary to defendants’ contention, plaintiffs motion was not premature. A motion for summary judgment may be made at any time after joinder of issue (see, CPLR 3212 [a]). Defendants failed to establish that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]). Here, plaintiff established his entitlement to judgment on liability on the Labor Law § 240 (1) claim as a matter of law, and defendants failed to raise a triable issue of fact (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). “[T]he availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures” (Conway v New York State Teachers’ Retirement Sys., 141 AD2d 957, 958-959; see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Present — Pigott, Jr., P.J., Pine, Wisner, Burns and Lawton, JJ.

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—Appeals from an order of Supreme Court, Erie County (Fallon, J.), entered December 29, 2000, which granted plaintiffs motion for partial summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted plaintiffs motion for partial summary judgment on liability on the Labor Law § 240 (1) claim. Contrary to defendants’ contention, plaintiffs motion was not premature. A motion for summary judgment may be made at any time after joinder of issue (see, CPLR 3212 [a]). Defendants failed to establish that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]). Here, plaintiff established his entitlement to judgment on liability on the Labor Law § 240 (1) claim as a matter of law, and defendants failed to raise a triable issue of fact (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). “[T]he availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures” (Conway v New York State Teachers’ Retirement Sys., 141 AD2d 957, 958-959; see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Present — Pigott, Jr., P.J., Pine, Wisner, Burns and Lawton, JJ.

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291 A.D.2d 831, 737 N.Y.S.2d 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waggoner-v-lancet-arch-inc-nyappdiv-2002.

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