Michael J. Pease et al., Respondents, v. Dicom Construction, Appellant

Michael J. Pease et al., Respondents, v Dicom Construction, Appellant. [747 NYS2d 665] [MAJORITY] —Appeal from an order of Supreme Court, Erie County (Cosgrove, J.), entered September 21, 2001, which denied defendant’s motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Michael J. Pease (plaintiff) fell from a ladder while installing electrical wire on premises owned by his employer Forestream Village, Inc. (Forestream). The sole contention of defendant in support of the motion was that it was not the general contractor on the project at the time plaintiff was injured, and defendant failed to meet its initial burden of establishing its entitlement to judgment as a matter of law on that ground. In support of the motion, defendant submitted the deposition testimony of one of its officers who testified that Forestream, not defendant, was the general contractor on the project, but he could not explain why the application for the building permit was in defendant’s name. He also could not explain why several mandatory construction inspections were requested in defendant’s name. “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see Zuckerman v City of New York, 49 NY2d 557, 562), and here defendant failed to make that showing. Present — Pine, J.P., Hurlbutt, Kehoe, Gorski and Lawton, JJ.