Summary
affirming grant of summary judgment in favor of defendant because "the claim that further disclosure is needed is not persuasive insofar as plaintiff, by his own inaction, has failed to act diligently in attempting to obtain pretrial discovery"
Summary of this case from Gama Aviation Inc. v. Sandton Capital Partners, LPOpinion
November 12, 1992
Appeal from the Supreme Court, Sullivan County (Williams, J.).
On February 3, 1989, plaintiff James M. Forshay (hereinafter plaintiff) was injured while riding in a vehicle operated by defendant Harry J. Huffman. At the time of the accident, plaintiff was employed by Mountain Dairies, Inc. Following joinder of issue, plaintiff moved to strike defendants' fifth affirmative defense, which asserted that plaintiff's causes of action were barred under the Workers' Compensation Law, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court, inter alia, granted defendants' cross motion and denied plaintiff's subsequent motion for reconsideration. These appeals followed.
At issue on appeal is whether plaintiff and Huffman were coemployees; if so, this action is barred under Workers' Compensation Law § 29 (6) (see, Heritage v Van Patten, 59 N.Y.2d 1017; cf., Kenny v Bacolo, 61 N.Y.2d 642). In support of their cross motion for summary judgment, defendants submitted affidavits by Huffman and the president of defendant Star Dairy Inc. and Mountain Dairies asserting that Huffman was employed by the latter company at the time of the accident. It is undisputed that plaintiff was employed by Mountain Dairies at that time. Defendants also submitted a wage and tax statement for 1989 showing Mountain Dairies as Huffman's employer. In our view, defendants met their burden of submitting admissible proof in evidentiary form that Huffman was plaintiff's coemployee; it was then incumbent upon plaintiff to submit proof in admissible form sufficient to create a triable issue of fact (see, Kennerly v Campbell Chain Co., 133 A.D.2d 669). This plaintiff failed to do.
It is true that summary judgment will not be granted where self-serving exculpatory statements are made by parties having exclusive knowledge of the facts (see, Koen v Carl Co., 70 A.D.2d 695). Plaintiff argues that such is the case here and that further discovery is required to refute defendants' contentions. We disagree. Even if we accept that the question of whether Huffman and plaintiff were coemployees is within defendants' exclusive knowledge, the claim that further disclosure is needed is not persuasive insofar as plaintiff, by his own inaction, has failed to act diligently in attempting to obtain pretrial discovery (see, National Union Fire Ins. Co. v Glass Check Cashing Corp., 177 A.D.2d 419; cf., Liberty Mut. Ins. Co. v Aetna Cas. Sur. Co., 168 A.D.2d 121, 137). Plaintiff had ample opportunity to develop the facts before he moved to strike defendants' affirmative defense on this issue, and it was not until defendants' cross motion that plaintiff sought production of Star Dairy's payroll records (see, Rastelli v Goodyear Tire Rubber Co., 165 A.D.2d 111, revd on other grounds 79 N.Y.2d 289; Babcock v Allan, 115 A.D.2d 297). Given this lack of diligence, and inasmuch as plaintiff's papers in opposition to the cross motion "do not demonstrate any significant possibility beyond speculation or surmise that further discovery" will determine the issue of Huffman's employment status (Rastelli v Goodyear Tire Rubber Co., supra, at 114), plaintiff's excuse for failing to contradict the proof was insufficient to defeat the cross motion. We have considered plaintiff's remaining contentions, including the appealable portion of the motion for reconsideration, and find the arguments advanced to be lacking in merit.
Mikoll, J.P., Yesawich Jr., Mercure and Casey, JJ., concur. Ordered that the orders are affirmed, with costs.