| Valdivia v Consolidated Resistance Co. of Am., Inc. |
| 2008 NY Slip Op 06826 [54 AD3d 753] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Martin Valdivia, Appellant, v Consolidated ResistanceCompany of America, Inc., Respondent, et al., Defendant. |
—[*1] Downing & Peck, P.C., New York, N.Y. (John M. Downing, Jr., and Robert Mazzei ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.),entered May 30, 2007, as granted that branch of the motion of the defendant ConsolidatedResistance Company of America, Inc., which was for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Consolidated Resistance Company of America, Inc., whichwas for summary judgment dismissing the complaint insofar as asserted against it is denied, withleave to renew with respect to the Labor Law § 200 and common-law negligence causes ofaction after completion of discovery, if that defendant be so advised.
The Supreme Court should not have granted those branches of the motion of the defendantproperty owner (hereinafter the defendant) which were to dismiss the plaintiff's Labor Law§ 240 (1) and § 241 (6) causes of action. Labor Law § 240 (1) imposes anondelegable duty upon owners and contractors to provide safety devices necessary for theprotection of workers subject to the risks inherent in elevated work sites (see Jock v Fien,80 NY2d 965, 967 [1992]; Riccio vNHT Owners, LLC, 51 AD3d 897 [2008]; Friscia v New Plan Realty Trust, 267AD2d 197 [1999]). "While the reach of section 240 (1) is not limited to work performed onactual construction sites . . . the task in which an injured employee was engagedmust have been performed during 'the erection, demolition, repairing, altering, painting, cleaningor pointing of a building or [*2]structure' " (Martinez v City ofNew York, 93 NY2d 322, 326 [1999], quoting Labor Law § 240 (1); see Holler v City of New York, 38AD3d 606 [2007]). In support of that branch of its motion which was for summary judgmentdismissing the plaintiff's Labor Law § 240 (1) cause of action, the defendant offered noevidentiary proof, in admissible form, as to the nature of the work the plaintiff was performing atthe time of the accident, and the manner in which the accident occurred. Thus, the defendantfailed to sustain its burden of making a prima facie showing that Labor Law § 240 (1) doesnot apply (cf. Heath v County of Orange, 273 AD2d 274). In addition, although LaborLaw § 241 (6) protects only those workers engaged in duties connected to the inherentlyhazardous work of construction, excavation, or demolition (see Nagel v D & R RealtyCorp., 99 NY2d 98, 101 [2002]; Gleason v Gottlieb, 35 AD3d 355 [2006]), the defendant'sevidentiary submissions were insufficient to establish, as a matter of law, that no constructionwork was being performed in its premises at the time of the accident.
Furthermore, the court should have denied as premature those branches of the defendant'smotion which were for summary judgment dismissing the plaintiff's Labor Law § 200 andcommon-law negligence causes of action. "A party should be afforded a reasonable opportunityto conduct discovery prior to the determination of a motion for summary judgment" (Venables v Sagona, 46 AD3d 672,673 [2007]; see Amico v MelvilleVolunteer Fire Co., Inc., 39 AD3d 784 [2007]; Fazio v Brandywine Realty Trust, 29 AD3d 939 [2006]; Afzal v Board of Fire Commrs. of BellmoreFire Dist., 23 AD3d 507 [2005]). Since the defendant's motion for summary judgmentwas made shortly after joinder of issue and prior to depositions, the plaintiff has not had anadequate opportunity to conduct discovery.
The plaintiff's contentions regarding that branch of his cross motion which was to extend histime to serve the summons and complaint pursuant to CPLR 306-b are not properly before us, asthat branch of the cross motion remains pending and undecided (see Katz v Katz, 68AD2d 536 [1979]; see also Moser vLavipour & Co., Inc., 35 AD3d 414 [2006]; Kasner v Kasner, 8 AD3d 535 [2004]; Devivo v Devivo, 2 AD3d 483[2003]). Santucci, J.P., Angiolillo, Eng and Chambers, JJ., concur.