| Bartee v D & S Fire Protection Corp. |
| 2010 NY Slip Op 09082 [79 AD3d 508] |
| December 9, 2010 |
| Appellate Division, First Department |
| Kevin Bartee, Respondent, v D & S Fire Protection Corp.,Appellant, et al., Defendants. |
—[*1] Sackstein, Sackstein & Lee, LLP, Garden City (Laurence D. Rogers of counsel), forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 5, 2010, which,in an action for personal injuries sustained by a worker at a school construction site when he fell into ahole created by the removal of a grating, inter alia, denied, without prejudice to renew after furtherdisclosure, defendant-appellant sprinkler system contractor's (appellant) motion for summary judgmentdismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Appellant's summary judgment motion was premature. The affidavit of its president stating that itdid not remove the grating or have any responsibility for it was not based on personal knowledge, andwas otherwise conclusory and therefore insufficient to satisfy appellant's prima facie burden on themotion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Gonzalez v Vincent James Mgt. Co., 306 AD2d 226 [2003]). Nor was this deficiency curedby appellant's contract with the school district and "contractor's daily reports" stating that appellant'sworkers had accessed a "pump-room," a "valve-room," and the basement on days before the accident,and that a worker had finished "exterior WMAG" and "firecaulked floor penetrations" on the day of theaccident. In any event, we would reach the same result even if the foregoing were sufficient to show,prima facie, appellant's lack of involvement in the removal of the grating, since plaintiff provided anacceptable excuse for not showing any countervailing facts, namely, lack of opportunity to depose anyof the parties as to their involvement in the removal of the grating, especially appellant's employee whowas at the site on the day of the accident (see Gonzalez, 306 AD2d 226; see alsoTerranova v Emil, 20 NY2d 493, 497 [1967]). Contrary to appellant's contention that plaintiff'srequest for additional disclosure is based on mere hope or conjecture that such will reveal favorableevidence, plaintiff's photos of the hole and appellant's daily reports show that facts essential to defeatthe summary judgment motion may exist but cannot yet be stated (CPLR 3212 [f]).Concur—Mazzarelli, J.P., Friedman, McGuire, Renwick and Richter, JJ.