Opinion
1165 CA 18–02233
03-20-2020
Troy A. DUNN, Plaintiff, v. COVANTA NIAGARA I, LLC, LP Ciminelli, Inc., Defendants–Appellants, Kandey Company, Inc., Pinto Construction Services, Inc., Defendants–Respondents, et al., Defendants. (Appeal No. 2.)
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is reversed on the law without costs and the cross motion is granted in part with respect to the cross claims for contractual defense and indemnification against defendants-respondents.
Memorandum: In this action to recover for personal injuries sustained by plaintiff in an accident at a work site, defendants-appellants (movants) appeal from an order insofar as it denied, as premature, that part of their cross motion seeking summary judgment on their cross claims for contractual defense and indemnification against defendants-respondents (nonmovants). We reverse the order insofar as appealed from.
We agree with the movants that Supreme Court erred in denying as premature their cross motion with respect to the relevant cross claims. The nonmovants failed "to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the [cross] motion were exclusively within the knowledge and control of the movant[s] ..., and the [m]ere hope that somehow the [nonmovants] will uncover evidence that will [help their] case is insufficient for denial of the [summary judgment] motion" as premature ( Gannon v. Sadeghian, 151 A.D.3d 1586, 1588, 57 N.Y.S.3d 252 [4th Dept. 2017] [internal quotation marks omitted] ). We further agree with the movants that they established their entitlement to judgment as a matter of law on their cross claims for contractual defense and indemnification and that the nonmovants failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
All concur except Whalen, P.J., and Peradotto, J., who dissent and vote to affirm in the following memorandum:
We respectfully dissent. In our view, Supreme Court properly denied that part of the cross motion of defendants-appellants (movants) seeking summary judgment on their cross claims for contractual defense and indemnification against defendants-respondents. Movants' own submissions, which included plaintiff's testimony, raise a triable issue of fact whether movants were free from negligence (see State of New York v. Santaro Indus., Inc., 48 A.D.3d 1101, 1102–1103, 850 N.Y.S.2d 784 [4th Dept. 2008] ) and, moreover, plaintiff has not had the opportunity to depose representatives of movants regarding whether movants were negligent and whether any liability on their part was vicarious only (see CPLR 3212[f] ; Syracuse Univ. v. Games 2002, LLC, 71 A.D.3d 1531, 1531–1532, 897 N.Y.S.2d 343 [4th Dept. 2010] ). We would therefore affirm.