BECK v. Niagara Falls Water Board, Defendant–Appellant.

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

Daniel J. BECK and Debra Beck, Plaintiffs–Respondents, v. CITY OF NIAGARA FALLS, et al., Defendants, Niagara Falls Water Board, Defendant–Appellant.

1461

Decided: February 08, 2019

PRESENT:  WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANCIS M. LETRO, BUFFALO (CAREY C. BEYER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  This premises liability action stems from injuries sustained by 17–year–old Daniel J. Beck (plaintiff) while he was working as an employee of the National Maintenance Contracting Corporation (NMCC), a welding and fabricating company with a facility located at the intersection of 56th Street and Simmons Avenue in the City of Niagara Falls.  Plaintiff was assisting a coworker in using a forklift and a clamp to transport a steel beam to a different location within NMCC's facility via Simmons Avenue, when the forklift struck one or more potholes and the beam fell, causing an injury to plaintiff's foot.  The Niagara Falls Water Board (defendant) was responsible for the care and maintenance of the area on Simmons Avenue where the incident is alleged to have occurred.  Defendant appeals from an order that denied its cross motion for summary judgment dismissing the complaint and all cross claims against it on the ground that plaintiffs failed to identify the cause and the location of the incident.  We affirm.

Contrary to defendant's contention, Supreme Court properly denied the cross motion as premature because discovery, including the depositions of the parties involved in the incident, had not been completed (see CPLR 3212[f];  Syracuse Univ. v. Games 2002, LLC, 71 A.D.3d 1531, 1531–1532, 897 N.Y.S.2d 343 [4th Dept. 2010] ), and plaintiffs, in opposing defendant's cross motion as premature pursuant to CPLR 3212(f), made the requisite evidentiary showing to support the conclusion that facts essential to justify opposition may exist but could not then be stated (see Resetarits Constr. Corp. v. Elizabeth Pierce Olmstead, M.D. Center for the Visually Impaired [appeal No. 2], 118 A.D.3d 1454, 1456, 988 N.Y.S.2d 797 [4th Dept. 2014];  see also Feldmeier v. Feldmeier Equip., Inc., 164 A.D.3d 1093, 1097, 84 N.Y.S.3d 609 [4th Dept. 2018] ).  Plaintiffs' submissions in response to defendant's cross motion, which included written statements from three witnesses and NMCC's accident reports, established that testimony regarding both the specific cause and specific location of the incident could be obtained through discovery, and that “facts essential to oppose the [cross] motion were in [the movant's] exclusive knowledge and possession and could be obtained through discovery” (Resetarits Constr. Corp., 118 A.D.3d at 1456, 988 N.Y.S.2d 797 [internal quotation marks omitted] ).

Defendant's remaining contention, that the complaint must be dismissed because the notice of claim is insufficient, was raised for the first time in its reply papers and is therefore not properly before us (see Matter of Board of Mgrs. v. Assessor, City of Buffalo, 156 A.D.3d 1322, 1324, 68 N.Y.S.3d 238 [4th Dept. 2017];  Jackson v. Vatter, 121 A.D.3d 1588, 1589, 994 N.Y.S.2d 222 [4th Dept. 2014] ).