Reese v James N. Foss, Inc.
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Reese v James N. Foss, Inc. 2017 NY Slip Op 33502(U) March 31, 2017 Supreme Court, Erie County Docket Number: Index No. 2014-812401 Judge: Donna M. Siwek Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 812401/2014 FILED: ERIE COUNTY CLERK 04/24/2017 11:18 AM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/24/2017 * SUPREME COURT CHAMBERS STATE OF NEW YORK Donna M. Siwek S11p,ame Coult Justfl:'1 Kalherlne 8. Roacll, Confld4111Wl Law Clark 50 Dolawan1Avanue Ann M. MflZ, S.Cretaiy (716) 1145-93tl4•fax: (716) 84S-7B02 &'"Floor, Pa1t29 Buffalo, NY 14202 March 31, 2017 Brenna C. Gubala, Esq. Sugannan Law 14 Lafayette Sq. Sean Schoenborn, Esq. DeMarie & Schoenborn 14 Lafayette Sq. Buffalo, ::-.TY 14203 Re: Buffalo, l\'Y 14203 Emest Reese v. James N. Foss, Inc. Index No. 2014-812401 Memorandum Decision Dear Counselors: The following shall constitute the Court's Decision on the defenda nt's motion for summary injuries judgment. Plaintiff 's complai nt dated October 17, 2014, alleges that he sustaine d personal on June 15, resulting from an accident that occurred at 13 806 Broadway Street in Alden, New York met its has t defendan the 2012, while he was working as a laborer at those premises. We find that initial burden of establishing that it is not the owner of the premises at 13 806 Broadwa y Street in by the Alden, nor was the defendant a general contractor for any labor performed at the premises no had it plaintiff's employer, R&R Precision Construction. The defendant has established that involvement with construction at the premises as an owner, general contractor or their agent and that, therefore, the plaintiff has no basis for a claim against it. We find that the plaintiff has failed to raise a triable issue of fact in opposition to the motion and note that the only opposition submitted by the plaintiff was an attorney's affinnation which over the suggests that there are issues of fact as to "the extent to which defendan t exercised control discovery situs of the accident" and argues that the plaintiff has not had the opportunity to conduct any by rted unsuppo is on or a deposition of an agent of the defendant. The attorney 's affinnati nt's evidentiary material or exhibits and fails to raise a triable issue of fact to withstand the defenda is motion for summary judgment. Moreover, to the extent that the plaintiff argues that the motion was action this that note we premature and that depositions and discovery should be completed, conducted commen ced in October, 2014 and despite ample time and opportunity, plaintiff has not e defenda nt's motion with proofin any discovery to support the allegations in his complai nt or admissible fonn. Accordingly, the defendan t's motion is wan~ia. withou K! A New York State Supreme Court Justice [* 1] 4 of 4
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