Opinion
15785 Index No. 30930/18E Case No. 2021–02777
04-21-2022
Salvatore LAPORTA, Plaintiff–Appellant, v. PPC COMMERCIAL, LLC, Defendant–Respondent, The Parkchester South Condominium, Inc., Defendant.
Siegel & Coonerty, LLP, New York (Steven Aripotch of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Paul M. Tarr of counsel), for respondent.
Siegel & Coonerty, LLP, New York (Steven Aripotch of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Paul M. Tarr of counsel), for respondent.
Manzanet–Daniels, J.P., Kern, Singh, Kennedy, Mendez, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 28, 2021, which denied plaintiff's motion for summary judgment as to liability on the Labor Law § 240(1) claim against defendant PPC Commercial, LLC, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established prima facie that PPC is liable under Labor Law § 240(1) through plaintiff and his coworker's affidavits that the unstable eight-foot A-frame ladder, which was missing rubber feet, shifted, causing him to fall (see Garces v. Windsor Plaza, LLC., 189 A.D.3d 539, 539, 138 N.Y.S.3d 23 [1st Dept. 2020] ). It was undisputed that PPC was the owner of the property. Plaintiff also established that his work of retrofitting light fixtures was covered under § 240(1) and did not constitute mere maintenance (see Caban v. Maria Estela Houses I Assoc., L.P., 63 A.D.3d 639, 640, 882 N.Y.S.2d 97 [1st Dept. 2009] ).
We reject PPC's argument that plaintiff's motion was premature ( CPLR 3212[f] ). The fact that no depositions have been taken does not preclude summary judgment in plaintiff's favor, as PPC failed to show that discovery might lead to facts that would support its opposition to the motion (see Kremer v. Sinopia LLC, 104 A.D.3d 479, 481, 961 N.Y.S.2d 383 [1st Dept. 2013] ). PPC also failed to show that facts essential to its opposition were within plaintiff's exclusive knowledge (see Greca, 200 A.D.3d at 416, 154 N.Y.S.3d 780 ). Its argument that deposition testimony might further illuminate issues raised by the affidavits is unavailing. "The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion" ( Guerrero v. Milla, 135 A.D.3d 635, 636, 24 N.Y.S.3d 63 [1st Dept. 2016] [internal quotation marks omitted]).