Citimortgage, Inc. v. Brown, 83 A.D.3d 644

83 A.D.3d 644

N.Y. App. Div.

2011

Stevenson v. City of New York docket=“unknown” court=“N.Y. App. Div.” date=“2010” citation=“919 NYS2d 894” judge=“Mastro, J.P., Dillon, Balkin and Miller, JJ.” shortName=“Stevenson v. City of New York” -->

CITIMORTGAGE, INC., Respondent, v ISAAC BROWN, Appellant.

Supreme Court, Appellate Division, Second Department, New York

2010

[919 NYS2d 894]

dismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241 (6), and denied his cross motion for leave to serve an amended bill of particulars.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants and the third-party defendant appearing separately and filing separate briefs.

The defendants and the third-party defendant demonstrated that the ladder from which the plaintiff fell was not defective or inadequate, and that the plaintiff fell because he lost his balance (see Xidias v Morris Park Contr. Corp., 35 AD3d 850, 851 [2006]; Molyneaux v City of New York, 28 AD3d 438, 439 [2006]; Costello v Hapco Realty, 305 AD2d 445, 447 [2003]; Olberding v Dixie Contr., 302 AD2d 574 [2003]). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court correctly awarded summary judgment to the defendants and the third-party defendant dismissing the Labor Law § 240 (1) cause of action. The defendants and the third-party defendant also established, prima facie, that they did not violate any applicable provision of the Industrial Code. Accordingly, they established their entitlement to judgment as a matter of law dismissing the Labor Law § 241 (6) cause of action. In opposition, the plaintiff failed to raise a triable issue of fact. Consequently, the Supreme Court correctly awarded summary judgment to the defendants and the third-party defendant dismissing that cause of action as well.

A determination of a motion for summary judgment cannot be avoided by a claimed need for discovery unless the party opposing the motion demonstrates that discovery may lead to relevant evidence (see CPLR 3212 [f]; Nash v Baumblit Constr. Corp., 72 AD3d 1037, 1040 [2010]). Here, the plaintiff failed to make the requisite showing. Accordingly, the Supreme Court properly granted those branches of the respective motion and cross motion of the third-party defendant and the defendants which were for summary judgment dismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241 (6).

The Supreme Court also providently exercised its discretion in denying the plaintiff‘s cross motion for leave to serve an amended bill of particulars after the filing of the note of issue (see CPLR 3042 [b]; see generally Singh v Rosenberg, 32 AD3d 840, 842 [2006]). Mastro, J.P., Dillon, Balkin and Miller, JJ., concur.

In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Orange County (Owen, J.), dated November 2, 2009, which denied his motion to vacate a judgment of foreclosure and sale of the same court dated January 14, 2009, entered upon his failure to appear or answer.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628 [2010]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167 [2010]). Here, the Supreme Court properly determined that the defendant failed to establish a reasonable excuse for his failure to appear or answer. In any event, the defendant failed to demonstrate the existence of a potentially meritorious defense.

The defendant‘s remaining contentions are either without merit or improperly raised for the first time on appeal. Accordingly, the defendant‘s motion to vacate the judgment of foreclosure and sale, entered upon his failure to appear or answer, was correctly denied. Rivera, J.P., Chambers, Hall and Lott, JJ., concur.