Opinion
8911 Index 305358/14
04-04-2019
Edgard ESPINOZA, Plaintiff–Respondent, v. FOWLER–DALEY OWNERS, INC., Defendant–Appellant, Kenilworth Equities Ltd., et al., Defendants.
Brody, O'Connor & O'Connor, New York (Scott A. Brody of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Brody, O'Connor & O'Connor, New York (Scott A. Brody of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.
Plaintiff's post-note of issue summary judgment motion was not premature. If Fowler needed to conduct additional nonparty depositions in order to successfully oppose the motion, then it should have either deposed those witnesses during the nearly two years that discovery was open in this case or moved to vacate the note of issue on that basis. Fowler "cannot cite [its] own inaction as justification to deny" plaintiff's summary judgment motion ( Judd v. Vilardo, 57 A.D.3d 1127, 1131, 870 N.Y.S.2d 485 [3d Dept. 2008] ; see also Auerbach v. Bennett, 47 N.Y.2d 619, 636, 419 N.Y.S.2d 920, 393 N.E.2d 994 [1979] ).
Plaintiff's motion was properly granted, as he established prima facie that Fowler failed to provide equipment such as harnesses and tie-off points for safety lines, which plaintiff had specifically requested on and prior to the day of his accident, in order to give proper protection to individuals involved in pointing its building (see Ramos v. Port Auth. of N.Y. & N.J., 306 A.D.2d 147, 761 N.Y.S.2d 57 [1st Dept. 2003] ). In opposition, Fowler failed to raise a triable issue of fact. Its argument that plaintiff was the sole proximate cause of the accident fails because "if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it" ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ).
We have considered Fowler's remaining contentions and find them unavailing.