RIVERA v. Me Engineers et al., Defendants–Respondents. (2023)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 14, 2022, which, to the extent appealed from as limited by the briefs, granted so much of defendant 3 RSD, LLC's motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, the motion denied as premature with respect to plaintiff's claims alleging violation of Labor Law § 240(1) and § 241(6), with leave to renew upon the completion of discovery, and otherwise affirmed, without costs.

This case stems from a construction accident that occurred at 3 RSD's property.  3 RSD is owned by a nonparty LLC that has only one managing member.  In support of its motion for summary judgment, 3 RSD submitted its managing member's affidavit, averring that 3 RSD intended to use the property solely for residential purposes.  This established 3 RSD's prima facie case that it was entitled to the protection of the homeowner's exemption and the dismissal of the Labor Law §§ 240(1) and 241(6) claims.  However, we note that 3 RSD has acknowledged that its managing member is the only person with knowledge that 3 RSD intended to use the premises entirely and solely for commercial purposes (see Batzin v. Ferrone, 140 A.D.3d 1102, 1104, 32 N.Y.S.3d 660 [2d Dept. 2016]).  Moreover, plaintiff produced documentation showing that 3 RSD had previously undertaken similar projects for commercial purposes.  Accordingly, the record demonstrates the existence of a factual issue as to whether the property is to be used solely and entirely for commercial purposes (Van Amerogen v. Donnini, 78 N.Y.2d 880, 882, 573 N.Y.S.2d 443, 577 N.E.2d 1035 [1991];  see Farias v. Simon, 122 A.D.3d 466, 467, 997 N.Y.S.2d 28 [1st Dept. 2014];  see also Ramirez v. Hansum, 202 A.D.3d 605, 606, 159 N.Y.S.3d 832 [1st Dept. 2022]).  Since 3 RSD had not yet produced that managing member for deposition at the time that it moved for summary judgment, plaintiff established “that facts essential to justify opposition” might exist but could not “then be stated” (CPLR 3212[f]) because they were “within the exclusive knowledge of the moving party” (Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 557, 843 N.Y.S.2d 630 [1st Dept. 2007]).  Accordingly, 3 RSD's motion to dismiss the Labor Law § 240(1) and § 241(6) claims should have been denied as premature, with leave to renew upon the completion of discovery (see e.g. Corona v. HHSC 13th St. Dev. Corp., 197 A.D.3d 1025, 1026, 153 N.Y.S.3d 448 [1st Dept. 2021]).