Opinion
2011-12-20
German PACHECO, respondent, v. HALSTEAD COMMUNICATIONS, LTD., et al., defendants,Michael Marthaler, et al., appellants.
Ryan Perrone & Hartlein, Mineola, N.Y. (Robin Mary Heaney and William T. Ryan of counsel), for appellants. Harris Law Group, LLP, Rego Park, N.Y. (Carole R. Moskowitz of counsel), for respondent.
Ryan Perrone & Hartlein, Mineola, N.Y. (Robin Mary Heaney and William T. Ryan of counsel), for appellants. Harris Law Group, LLP, Rego Park, N.Y. (Carole R. Moskowitz of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the defendants Michael Marthaler and Debra Marthaler appeal from an order of the Supreme Court, Queens County (McDonald, J.), entered April 22, 2010, which denied, as premature, their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Michael Marthaler and Debra Marthaler for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.
The defendants Michael Marthaler and Debra Marthaler (hereinafter together the appellants), are the owners of real property, improved by a single-family home, located in Mohegan Lake. On November 28, 2007, the plaintiff, an employee of the defendants Halstead Communications, Ltd. (hereinafter Halstead), and Mobilpro Installation Services, LLC (hereinafter Mobilpro), fell from a ladder while installing a satellite dish on the appellants' home. He commenced this action alleging, inter alia, violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence. The Supreme Court denied, as premature, the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. We reverse.
The appellants made a prima facie showing of entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against them by demonstrating that they were the owners of a one-or two-family dwelling who contracted for but did not direct or control the work that allegedly caused the plaintiff's injuries ( see Labor Law §§ 240[1], 241[6]; Gittins v. Barbaria Constr. Corp., 74 A.D.3d 744, 902 N.Y.S.2d 613; Parnell v. Mareddy, 69 A.D.3d 915, 897 N.Y.S.2d 108). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the appellants directed or controlled the work ( see Duncan v. Perry, 307 A.D.2d 249, 250, 762 N.Y.S.2d 275). Furthermore, in opposition to the appellants' showing, the plaintiff failed to raise a triable issue of fact as to whether the appellants' dwelling was not a one-or two-family dwelling or that it was used for a commercial purpose ( see Ramirez v. Begum, 35 A.D.3d 578, 578–579, 829 N.Y.S.2d 117; Small v. Gutleber, 299 A.D.2d 536, 537, 751 N.Y.S.2d 49).
The appellants also made a prima facie showing of their entitlement to judgment as a matter of law dismissing the common-law negligence and Labor Law § 200 causes of action by demonstrating that they did not have authority to exercise supervisory control over the plaintiff ( see Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123). In opposition, the plaintiff failed to raise a triable issue of fact ( see Ortega v. Puccia, 57 A.D.3d 54, 62–63, 866 N.Y.S.2d 323; Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 851, 823 N.Y.S.2d 477).
Moreover, there was no reason to delay the determination of the motion pending completion of discovery since the plaintiff failed to demonstrate that such discovery was necessary to oppose the motion or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the appellants ( see Espada v. City of New York, 74 A.D.3d 1276, 903 N.Y.S.2d 237; Hill v. Ackall, 71 A.D.3d 829, 895 N.Y.S.2d 837; Boadnaraine v. City of New York, 68 A.D.3d 1032, 892 N.Y.S.2d 470). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion ( see Pina v. Merolla, 34 A.D.3d 663, 824 N.Y.S.2d 411).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them should have been granted.