| Rowland v Wilmorite, Inc. |
| 2009 NY Slip Op 09880 [68 AD3d 1770] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Paul Rowland, Appellant, v Wilmorite, Inc.,Respondent. |
—[*1] Law Offices of Lawrence M. Rubin, Buffalo (Jennifer S. Adams of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (David M. Barry, J.), enteredSeptember 22, 2008 in a personal injury action. The order, inter alia, granted the motion ofdefendant for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging, as limited by his brief on appeal,that defendant's violation of Labor Law § 240 (1) caused him to fall from a ladder whileperforming electrical work at a mall. Supreme Court properly granted defendant's motion forsummary judgment dismissing the amended complaint. We reject plaintiff's contention thatdefendant, the construction manager on the project, was liable pursuant to Labor Law §240 (1) as an agent of the mall's owner, Great Eastern Mall, LP (Great Eastern). "Defendantestablished as a matter of law that it was not an agent of the owner because the owner had notdelegated to it the authority to supervise and control plaintiff's work" (Phillips v Wilmorite,Inc., 281 AD2d 945, 946 [2001]; see Bateman v Walbridge Aldinger Co., 299 AD2d834, 835 [2002], lv denied 100 NY2d 502 [2003]), and plaintiff failed to raise a triableissue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We reject the further contention of plaintiff that the motion was premature because he hadnot completed discovery. Plaintiff "failed to demonstrate that facts essential to oppose the motionwere in [defendant's] exclusive knowledge and possession and could be obtained by discovery"(Franklin v Dormitory Auth. of State of N.Y., 291 AD2d 854, 854 [2002]). The recordestablishes that plaintiff had ample opportunity for discovery prior to the motion and, in anyevent, "[a] mere hope that somehow plaintiff[ ] will uncover evidence that will prove [his] caseis not sufficient to defeat a motion for summary judgment" (Babcock v Allan, 115 AD2d297, 298 [1985]).
Contrary to the contention of plaintiff, the court properly denied that part of his cross motionseeking leave to amend the amended complaint by adding Great Eastern as a defendant. Becausethe statute of limitations had expired with respect to plaintiff's proposed claims against GreatEastern, plaintiff would be permitted to add Great Eastern as a defendant only if he couldestablish the applicability of the relation back doctrine (see CPLR 203 [b]; Buran vCoupal, 87 [*2]NY2d 173, 177-178 [1995]). Here, plaintifffailed to establish the second of the three prongs of that doctrine, i.e., that defendant and GreatEastern were united in interest such that Great Eastern could be charged with notice of the actionand thus would not be prejudiced in maintaining a defense on the merits (see Mongardi v BJ's Wholesale Club,Inc., 45 AD3d 1149, 1150 [2007]). To demonstrate unity of interest, plaintiff had toestablish that defendant and Great Eastern could be held vicariously liable for each other's acts(see id. at 1151). In support of his cross motion, however, plaintiff submitted the contractbetween defendant and Great Eastern as well as the deposition testimony of an agent ofdefendant establishing that the two corporations were not vicariously liable for each other's acts.Thus, plaintiff by his own submissions defeated his entitlement to the relief sought with respectto that part of his cross motion. Present—Hurlbutt, J.P., Smith, Fahey and Carni, JJ.