| Pacheco v Halstead Communications, Ltd. |
| 2011 NY Slip Op 09294 [90 AD3d 877] |
| December 20, 2011 |
| Appellate Division, Second Department |
| German Pacheco, Respondent, v HalsteadCommunications, Ltd., et al., Defendants, and Michael Marthaler et al.,Appellants. |
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Harris Law Group, LLP, Rego Park, N.Y. (Carole R. Moskowitz of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Michael Marthaler andDebra Marthaler appeal from an order of the Supreme Court, Queens County (McDonald, J.),entered April 22, 2010, which denied, as premature, their motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsMichael Marthaler and Debra Marthaler for summary judgment dismissing the complaint and allcross claims insofar as asserted against them is granted.
The defendants Michael Marthaler and Debra Marthaler (hereinafter together the appellants),are the owners of real property, improved by a single-family home, located in Mohegan Lake. OnNovember 28, 2007, the plaintiff, an employee of the defendants Halstead Communications, Ltd.(hereinafter Halstead), and Mobilpro Installation Services, LLC (hereinafter Mobilpro), fell froma ladder while installing a satellite dish on the appellants' home. He commenced this actionalleging, inter alia, violations of Labor Law §§ 200, 240 (1) and § 241 (6), andcommon-law negligence. The Supreme Court denied, as premature, the appellants' motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem.We reverse.
The appellants made a prima facie showing of entitlement to judgment as a matter of lawdismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241(6) insofar as asserted against them by demonstrating that they were the owners of a one- ortwo-family dwelling who contracted for but did not direct or control the work that allegedlycaused the plaintiff's injuries (see Labor Law § 240 [1]; § 241 [6]; Gittins v Barbaria Constr. Corp., 74AD3d 744 [2010]; Parnell vMareddy, 69 AD3d 915 [2010]). In opposition, the plaintiff failed to raise a triable issueof fact as to whether the appellants directed or controlled the work (see Duncan v Perry,307 AD2d 249, 250 [2003]). Furthermore, in opposition to the appellants' showing, the plaintifffailed to raise a triable issue of fact as to whether the appellants' dwelling was not a one- ortwo-family dwelling or that it was used for a commercial purpose (see Ramirez v Begum, 35 AD3d578, 578-579 [2006]; Small v [*2]Gutleber, 299AD2d 536, 537 [2002]).
The appellants also made a prima facie showing of their entitlement to judgment as a matterof law dismissing the common-law negligence and Labor Law § 200 causes of action bydemonstrating that they did not have authority to exercise supervisory control over the plaintiff(see Chowdhury v Rodriguez, 57AD3d 121 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact (see Ortega v Puccia, 57 AD3d 54,62-63 [2008]; Ferrero v Best ModularHomes, Inc., 33 AD3d 847, 851 [2006]).
Moreover, there was no reason to delay the determination of the motion pending completionof discovery since the plaintiff failed to demonstrate that such discovery was necessary to opposethe motion or that facts essential to justify opposition to the motion were exclusively within theknowledge and control of the appellants (see Espada v City of New York, 74 AD3d 1276 [2010]; Hill v Ackall, 71 AD3d 829[2010]; Boadnaraine v City of NewYork, 68 AD3d 1032 [2009]). The mere hope or speculation that evidence sufficient todefeat a motion for summary judgment may be uncovered during the discovery process isinsufficient to deny the motion (see Pinav Merolla, 34 AD3d 663 [2006]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination.
Accordingly, the appellants' motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against them should have been granted. Skelos, J.P., Hall, Lottand Cohen, JJ., concur.