In Cappollella v. R & R Construction and Frank Fratarcangelli, et. al., the Monroe County Court (J. Williamson) granted Summary Judgment to each of three defendants in a premises liability case. The Motions were filed by two tenants and the property owner, each of whom raised slightly different arguments against plaintiff’s differing theories of liability for plaintiff’s alleged injuries from a fall while he was working on the roof of a commercial building. The property owner, Frank Fratarcangeli, hired a construction company, R&R Construction, to do work on the premises. It was averred that Fratarcangelli was responsible for maintaining the exterior of the premises where Plaintiff supposedly fell. However, Plaintiff died three years prior to the filing of the Motions and had not provided verified answers to discovery and had not been deposed, prior to his death. Plaintiff’s counsel asserted that additional time was needed to locate and depose Ronald Rutkowski, the owner of R&R who had been served, but never filed an Answer. No counsel had entered on behalf of R&R. Plaintiff’s counsel asserted Rutkowski was an essential witness in the case as to the alleged defect.
Defendant Fratarcangeli asserted that plaintiff had produced no evidence he had any control over the work of R&R. Moreover Plaintiff produced no evidence of where the alleged accident occurred, and no evidence of what the alleged defect was that caused plaintiff’s accident. In addition, Plaintiff did not provide evidence of the alleged defective condition or that Fratarcangeli had actual or constructive notice of any defective condition.
The Court noted plaintiff’s passing and agreed that Rutkowski may have relevant evidence. However, the Court found that there was sufficient time since the filing of the case for plaintiff to have obtained evidence to support its claims. Moreover, the Court was not convinced the information necessary to meet plaintiff’s burden of proof would be obtained if more time was granted for discovery. The court found expressly found Defendant’s Motion set forth legitimate and sufficient grounds for relief.
Questions regarding this matter may be directed to David Friedman
