Summary
In Tumminello v. Hamlet Development Co., 255 A.D.2d 575, leave to appeal denied, 93 N.Y.2d 80 (1999), the Appellate Division, Second Department, in a case directly on point, affirmed the decision of the nisi prius court, which held that individual condominium unit owners were exempt from liability for failure to provide the plaintiff, who was doing work on roof, reasonable and adequate protection and safety.
Summary of this case from HERRERA v. RAY'S HOME IMPROVEMENTOpinion
November 30, 1998
Appeal from the Supreme Court, Nassau County (O'Connell, J.).
Ordered that the order dated August 6, 1997, is affirmed insofar as appealed from; and it is further,
Ordered that the order dated January 6, 1998, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
Contrary to the plaintiff's contention, he could not defeat the respondents' motions for summary judgment on the mere hope that evidence sufficient to defeat those motions may be uncovered during the discovery process ( see, Mazzaferro v. Barterama Corp., 218 A.D.2d 643, 644).
Under the circumstances presented here, the respondents made a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issues of fact regarding liability for negligence or for violations of the Labor Law ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). The plaintiff failed to produce evidentiary proof in admissible form sufficient to raise a material question of fact, and, thus, the trial court properly granted the respondents' separate motions for summary judgment ( see, Zuckerman v. City of New York, supra, at 562).
O'Brien, J. P., Pizzuto, Joy and Goldstein, JJ., concur.