February 22, 2017 - M&H Wins Reversal And Reinstatement Of Complaint Against Construction Company

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M&H Wins Reversal And Reinstatement Of Complaint Against Construction Company

In this personal injury action, the Appellate Division, Second Judicial Department, in accordance with M&H's arguments on appeal, reversed the lower court's order and reinstated the plaintiff's Labor Law and negligence claims, finding that summary judgment was premature and that plaintiff should be afforded a reasonable opportunity to conduct discovery.

Martino v Midtown Trackage Ventures, LLC

2017 NY Slip Op 01346

Decided on February 22, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.


2015-10274
(Index No. 600003/15)

[*1]Thomas Martino, appellant,

v

Midtown Trackage Ventures, LLC, defendant, Tishman Construction Corporation, respondent.

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Arishia Hourizodeh], of counsel), for appellant.

Chesney & Nicholas, LLP, Syosset, NY (Jeffrey M. Burkhoff of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), dated September 16, 2015, as granted that branch of the motion of the defendant Tishman Construction Corporation which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Tishman Construction Corporation which was for summary judgment dismissing the complaint insofar as asserted against it is denied, with leave to renew after the completion of discovery.

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Brea v Salvatore, 130 AD3d 956, 956; Malester v Rampil, 118 AD3d 855, 856). Here, the defendant Tishman Construction Corporation (hereinafter Tishman) moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it about five months after the plaintiff commenced this action. Under the circumstances of this case, at this stage of the proceedings, the Supreme Court should have denied that branch of Tishman's motion with leave to renew after the completion of discovery (see CPLR 3212[f]; Brea v Salvatore, 130 AD3d 956; Nicholson v Bader, 83 AD3d 802; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785).

HALL, J.P., COHEN, MILLER and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court