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Wilson v. Yemen Realty Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 15, 2010

JERMAINE JESSE WILSON, AS THE ADMINISTRATOR OF THE ESTATE OF JACINTO CARMONA, PLAINTIFF-APPELLANT,
v.
YEMEN REALTY CORP., ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 12, 2009, which denied plaintiff's decedent's motion for partial summary judgment with leave to renew upon completion of discovery, unanimously affirmed, without costs.

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.

Tom, J.P., Andrias, Friedman, Nardelli, Catterson, JJ.

8601/07

The decedent alleged that he fell and struck his head when the ladder on which he was standing while painting the front of defendants' store "shook, slipped and collapsed." He asserted that the ladder lacked rubber feet and that he was not supplied with any safety device which might have prevented his fall.

The affidavit of the principal of defendant Lucky Star, denying any involvement in supplying the ladder from which the decedent fell, as well as notations in medical records pointed to by defendants suggesting that the fall from the ladder may have been precipitated by the worker's lightheadedness, raise material issues of fact warranting denial of summary judgment (see Riccio v NHT Owners, LLC, 51 AD3d 897 [2008]; Trippi v Main-Huron, LLC, 28 AD3d 1069 [2006]).

Moreover, in light of the incomplete state of discovery, including the fact that no party had yet been deposed, the summary judgment motion was premature (see Groves v Land's End Hous. Co., 80 NY2d 978 [1992]; Harvey v Nealis, 61 AD3d 935 [2009]; McGlynn v Palace Co., 262 AD2d 116, 117 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100615

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