HAMMOND v. ALEKNA CONSTRUCTION INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Gina M. HAMMOND, Plaintiff-Respondent, v. ALEKNA CONSTRUCTION, INC., et al., Defendants,

Stetson-Harza, Inc., a/k/a Harza Northeast, Inc., Defendant-Appellant. Anthony J. Sisti and Joanne A. Sisti, Plaintiffs-Respondents, v. Alekna Construction, Inc., et al., Defendants,

Stetson-Harza, Inc., a/k/a Harza Northeast, Inc., Defendant-Appellant. Candice O'Shea, Plaintiff-Respondent, v. Alekna Construction, Inc., et al., Defendants,

Stetson-Harza, Inc., a/k/a Harza Northeast, Inc., Defendant-Appellant. Rima Badalians, Plaintiff-Respondent, v. Alekna Construction, Inc., et al., Defendants,

Stetson-Harza, Inc., a/k/a Harza Northeast, Inc., Defendant-Appellant. Judith L. Jones, Plaintiff-Respondent, v. Alekna Construction, Inc., et al., Defendants,

Stetson-Harza, Inc., a/k/a Harza Northeast, Inc., Defendant-Appellant. United States Mineral Products Company, d/b/a Isolatek International, Third-Party Plaintiff, v. Utica City School District, Third-Party Defendant-Respondent, et al., Third-Party Defendants.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Timothy J. Perry, Syracuse, for Defendant-Appellant. Donald E. Keinz, Utica, for Plaintiff-Respondent Gina M. Hammond. Stephanie A. Palmer, Canastota, for Plaintiffs-Respondents Anthony J. Sisti, Joanne A. Sisti, Candice O'Shea, Rima Badalians and Judith L. Jones.

 Supreme Court properly denied the motion of defendant Stetson-Harza, Inc., a/k/a Harza Northeast, Inc. (Harza), seeking summary judgment dismissing the complaints and cross claims against it.   Harza was hired by third-party defendant Utica City School District to provide architectural and engineering services for construction of a junior high school.   Plaintiffs, employees and former employees of Utica City School District, allege that Harza's negligent design of the air ventilation system resulted in their exposure to CAFCO, a substance used to fireproof duct work, causing injury to each of them.   Although Harza met its initial burden of establishing its entitlement to judgment as a matter of law, plaintiffs raised an issue of fact whether the design of the air ventilation system was defective (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).  Furthermore, the motion was premature.   Plaintiffs established that discovery is incomplete and that facts bearing on the issue of the design of the ventilation system are within the exclusive control of Harza (see, CPLR 3212[f];  Shellberry v. Albright, 262 A.D.2d 942, 693 N.Y.S.2d 466).

Order unanimously affirmed without costs.

MEMORANDUM: