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ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED.

The Second Department determined summary judgment in this Labor Law 240(1) and 241(6) action should not have been awarded to plaintiff. Although plaintiff had made out a prima facie case against defendant YAM, the motion was premature in that plaintiff had not yet been deposed:

… [T]he plaintiff made a prima facie showing that YAM failed to provide him with adequate safety devices, as required by Labor Law § 240(1), and that this violation of the statute was a proximate cause of the accident … . The plaintiff also made a prima facie showing that he was injured while he was engaged in an activity covered under Labor Law § 241(6), that there was a violation of an applicable provision of the Industrial Code, and that the violation was a proximate cause of the accident … .

Nonetheless, the plaintiff’s motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against YAM was premature since there has been almost no discovery in the case and the plaintiff has not been deposed. In the absence of such discovery, YAM’s ability to defend is impaired, since it is limited to the plaintiff’s own unchallenged account of the accident, set forth in the affidavit he submitted in support of his motion for summary judgment, and YAM has not had an opportunity to explore potential defenses … . Churaman v C&B Elec., Plumbing & Heating, Inc., 2016 NY Slip Op 05703, 2nd Dept 8-3-16

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/SUMMARY JUDGMENT (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)

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