| Harvey v Nealis |
| 2009 NY Slip Op 03482 [61 AD3d 935] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Dalton Harvey, Appellant, v Malina Nealis,Respondent. |
—[*1] Goldberg Segalla LLP, White Plains, N.Y. (Michael F. Harris and William T. O'Connell 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, Rockland County (Kelly, J.), datedSeptember 3, 2008, as denied his motion for summary judgment on the issue of liability.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof denying the plaintiff's motion for summary judgment on the issue ofliability and substituting therefor a provision denying the motion as premature, without prejudiceto renewal following the completion of discovery; as so modified, the order is affirmed insofar asappealed from, with costs to the defendant.
In support of his motion for summary judgment on the issue of liability on the complaint,which alleged a violation of Labor Law § 240 (1), the plaintiff submitted an affidavitwherein he alleged that, while performing a repair in the defendant's building, he was injuredwhen a step ladder upon which he was standing began to "wobble and fall," causing him to falltherefrom. In opposition, the defendant asserted, inter alia, that the plaintiff's motion waspremature on the ground that no discovery had been provided by the plaintiff nor had anydepositions been conducted. The Supreme Court denied the plaintiff's motion, finding that therewere "clear issues of fact over how the accident occurred, the origin of the ladder and the failureto provide proper protection."
The plaintiff's motion for summary judgment on the issue of liability was premature (see [*2]Hirsch v Greenridge Assoc., LLC, 26 AD3d 411, 412[2006]). At the time of the plaintiff's motion, no discovery had taken place and neither party hadbeen deposed (see CPLR 3212 [f]; Groves v Land's End Hous. Co., 80 NY2d978, 980 [1992]; Afzal v Board of FireCommrs. of Bellmore Fire Dist., 23 AD3d 507, 508 [2005]). Under the circumstanceshere, the motion should have been denied as premature, without prejudice to renewal followingthe completion of discovery (seeValdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753, 755 [2008]; Venables v Sagona, 46 AD3d 672[2007]). Rivera, J.P., Spolzino, Angiolillo and Balkin, JJ., concur.