McGlynn v. Palace Company
| Decision Date | 15 June 1999 |
| Citation | 262 A.D.2d 116,691 N.Y.S.2d 514 |
| Court | New York Supreme Court — Appellate Division |
| Parties | DONALD J. McGLYNN et al., Respondents,<BR>v.<BR>PALACE COMPANY, Defendant, and AMEDEO HOTEL LIMITED PARTNERSHIP et al., Appellants and Third-Party Plaintiffs-Appellants-Respondents.<BR>WILDMAN & BERNHARDT CONSTRUCTION, INC., Third-Party Defendant-Respondent-Appellant. |
Plaintiff, Donald J. McGlynn, an employee of third-party defendant Wildman & Bernhardt Construction, Inc., was allegedly injured when he fell from a scaffold at a construction site owned by defendants and third-party plaintiffs Amedeo Hotel Limited Partnership and the Archdiocese of New York. This action ensued. On December 5, 1997 the motion court issued a preliminary conference order directing depositions of all parties on February 27, 1998, and completion of all other discovery by December, 1998.
Just one month after entry of the preliminary conference order, and before the parties obtained any discovery, plaintiffs moved for an order granting them partial summary judgment on their Labor Law § 240 (1) claim. Defendants Amedeo and the Archdiocese pointed to the lack of discovery and asserted that the motion for summary judgment was premature. In addition, they cross-moved for indemnity as against Wildman, which was the general contractor for the construction project. Notwithstanding the lack of discovery, the IAS Court granted plaintiffs' motion concluding, inter alia, that the defendants had an ample opportunity to obtain discovery necessary to contest liability. With regard to the cross-motion seeking indemnity, the court determined that whether Wildman was the active tortfeasor was a question for the jury. We conclude that the motion court erred.
At the time of plaintiffs' motion, defendants had not yet been provided with a deposition of the injured plaintiff or, for that matter, any other discovery. Moreover, this is not a situation where defendants can be charged with a failure to diligently seek discovery, since plaintiffs' motion was made almost immediately after entry of the court's preliminary conference order, and the motion for summary judgment brought into force a stay of discovery proceedings (CPLR 3214 [b]). Under the circumstances presented here, it was error to grant summary judgment prior to affording defendants an opportunity to depose plaintiff (cf., Darling v Solomon, 227 AD2d 851; Gaughan v Chase Manhattan Bank, 204 AD2d 67). Accordingly, plaintiffs'...
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Hennessy v. City of N.Y., 307847/09.
...York, 29 AD3d 449, 449 [1st Dept 2006] ; Bradley v. Ibex Construction, LLC, 22 AD3d 380, 380–381 [1st Dept 2005] ; McGlynn v. Palace Co., 262 A.D.2d 116, 117 [1st Dept 1999] ). Under these circumstances, the proponent seeking denial of a motion as premature, need not demonstrate what discov......
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Singh v. N.Y.C. Hous. Auth.
...2015] ). The record further shows that defendant had a reasonable opportunity to pursue discovery (see generally McGlynn v. Palace Co. , 262 A.D.2d 116, 691 N.Y.S.2d 514 [1st Dept. 1999] ), and defendant has not shown that it was diligent in pursuing discovery in this case (see generally Vo......
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Jeffers v. Am. Univ. of Antigua
...they suffered financial harm. Defendants' motion for summary judgment stayed discovery (CPLR 3214[b] ; see McGlynn v. Palace Co., 262 A.D.2d 116, 117, 691 N.Y.S.2d 514 [1st Dept.1999] ), and there is no indication in the record that the court lifted the automatic stay. Plaintiffs' remaining......
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Jeffers v. Am. Univ. of Antigua
...they suffered financial harm. Defendants' motion for summary judgment stayed discovery (CPLR 3214[b] ; see McGlynn v. Palace Co., 262 A.D.2d 116, 117, 691 N.Y.S.2d 514 [1st Dept.1999] ), and there is no indication in the record that the court lifted the automatic stay. Plaintiffs' remaining......