Wilson v Yemen Realty Corp.

Wilson v Yemen Realty Corp. 2010 NY Slip Op 05250 [74 AD3d 544] June 15, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Jermaine Jesse Wilson, as Administrator of the Estate of Jacinto Carmona, Deceased, Appellant,
v
Yemen Realty Corp. et al., Respondents.

—[*1] William A. Gallina, Bronx (Frank V. Kelly of counsel), for appellant.

Law Office of W.H. Grae, Ridgewood, N.J. (William H. Grae of counsel), for Yemen Realty Corp. and Moshin A. Mofrehi, respondents.

Wade Clark Mulcahy, New York (John Mulcahy of counsel), for Lucky Star Discount Stationery, respondent.

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered January 12, 2009, which denied plaintiff's decedent's motion for partial summary judgment with leave to renew upon completion of discovery, unanimously affirmed, without costs.

The decedent alleged that he fell and struck his head when the ladder on which he was standing while painting the front of defendants' store "shook, slipped and collapsed." He asserted that the ladder lacked rubber feet and that he was not supplied with any safety device which might have prevented his fall.

The affidavit of the principal of defendant Lucky Star, denying any involvement in supplying the ladder from which the decedent fell, as well as notations in medical records pointed to by defendants suggesting that the fall from the ladder may have been precipitated by the worker's lightheadedness, raise material issues of fact warranting denial of summary judgment (see Riccio v NHT Owners, LLC, 51 AD3d 897 [2008]; Trippi v Main-Huron, LLC, 28 AD3d 1069 [2006]).

Moreover, in light of the incomplete state of discovery, including the fact that no party [*2]had yet been deposed, the summary judgment motion was premature (see Groves v Land's End Hous. Co., 80 NY2d 978 [1992]; Harvey v Nealis, 61 AD3d 935 [2009]; McGlynn v Palace Co., 262 AD2d 116, 117 [1999]). Concur—Tom, J.P., Andrias, Friedman, Nardelli and Catterson, JJ.