Court for the Trial of Impeachments and Correction of Errors, 2018

Somereve v. Plaza Constr. Corp.

Court for the Trial of Impeachments and Correction of Errors · Decided April 3, 2018

95 N.E.3d 567; 72 N.Y.S.3d 525; 31 N.Y.3d 936 (North Eastern Reporter, Third Series)

Counsel

Rafter & Associates PLLC, New York City (Howard K. Fish- man of counsel), for appellant., Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), for respondents.

Opinion of the Court

MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, plaintiffs' motion for partial summary judgment of liability on the Labor Law § 240(1) claim denied, and the certified question answered in the negative.

Here, where there is insufficient evidence concerning how the accident occurred, the requested discovery could aid in establishing what happened, and the note of issue was not due to be filed for another six months, summary judgment was prematurely granted (see Groves v. Land's End Hous. Co., 80 N.Y.2d 978, 980, 592 N.Y.S.2d 643, 607 N.E.2d 790 [1992] ).

Order reversed, with costs, plaintiffs' motion for partial summary judgment of liability on the Labor Law § 240(1) claim denied, and certified question answered in the negative, in a memorandum.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.

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