PINEDA v. LLC (2023)

Order, Bronx County (Lucindo Suarez, J.), entered October 14, 2022, which, to the extent appealed from, denied defendant Triple C Builders, LLC's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) and for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Triple C's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) was correctly denied, as plaintiff's complaint states a cause of action against Triple C. Triple C did not move pursuant to CPLR 3211(a)(1), and, even if it had, the affidavit of its president would not qualify as conclusive documentary evidence sufficient to warrant the complaint's dismissal (see Johnson v. Asberry, 190 A.D.3d 491, 492, 135 N.Y.S.3d 830 [1st Dept. 2021];  Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431, 951 N.Y.S.2d 393 [1st Dept. 2012];  Tsimerman v. Janoff, 40 A.D.3d 242, 835 N.Y.S.2d 146 [1st Dept. 2007]).

The court also correctly declined to grant Triple C summary judgment on the ground that the motion was premature (CPLR 3212[f]).  At this juncture, there has been little discovery, and the affidavit Triple C relies on to establish that it had no connection to the premises, or the work being conducted, does not negate other evidence of it being on the site.  Furthermore, Triple C's evidentiary support is taken from an individual who has not yet been deposed (see Lyons v. New York City Economic Dev. Corp., 182 A.D.3d 499, 499, 120 N.Y.S.3d 764 [1st Dept. 2020];  Guzman v. City of New York, 171 A.D.3d 653, 99 N.Y.S.3d 286 [1st Dept. 2019];  Jackson v. Hunter Roberts Constr. Group, LLC, 161 A.D.3d 666, 667, 78 N.Y.S.3d 310 [1st Dept. 2018]).