Gonzalez v. Vincent James Management Co. , 761 N.Y.S.2d 227 ( 2003 )

—Order, Supreme Court, Bronx County (Kenneth Thompson, J.), entered on or about April 9, 2002, which, in an action for personal injuries caused by falling debris from a kitchen ceiling, insofar as appealed from, denied defendant-appellant contractor’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The motion was premature. Appellant admits that less than two years before the accident, it retiled the bathroom floor directly above the kitchen in which plaintiff was injured, but its witness lacked personal knowledge of the work and could not say for certain whether the floor had been removed down to the floor joist. Even if the witness’s testimony as to appellant’s routine practices sufficed to make a prima facie showing that appellant’s work involved removal of the floor only to the “existing mud” and no plumbing work, and therefore could not have caused any unsafe condition related to the occurrence in issue, plaintiff has an acceptable excuse for not showing any countervailing facts (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), namely, her inability thus far to procure depositions from building representatives likely to have knowledge of appellant’s work in the bathroom. Appellant’s motion was properly denied. Concur — Andrias, J.P., Sullivan, Ellerin, Williams and Lerner, JJ.