Kozdranski v. O’Brien-Kreitzberg & Associates, Inc. 265 A.D.2d 916, 696 N.Y.S.2d 918

—Order unanimously reversed on the law without costs, motion denied and complaint and cross claims against defendant O’Brien-Kreitzberg & Associates, Inc. reinstated. Memorandum: Supreme Court erred in granting the motion of defendant O’Brien-Kreitzberg & Associates, Inc. (OKA) for summary judgment dismissing the complaint and cross claims against it. Plaintiff was injured when he fell from scaffolding while working at a water treatment plant that was being constructed for the City of Niagara Falls (City). The City retained OKA to provide construction management services. Plaintiff commenced this action alleging, inter alia, that OKA is liable as an agent of the City pursuant to Labor Law §§ 200, 240 and 241 (6). OKA met its initial burden by establishing that it had no authority to direct, control or supervise plaintiff’s work, the construction methods, or safety measures at the worksite (see, Zuckerman v City of New York, 49 NY2d 557, 562). In opposition, plaintiff established that the motion is premature (see, CPLR 3212 [fl). Plaintiff’s attorney asserted that no discovery had been conducted, and he submitted portions of the City’s contracts with OKA and the general contractor, thereby establishing that discovery is required to determine whether OKA had the authority to supervise or control plaintiff’s work, the construction methods or safety measures at the worksite (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506; Olney v Ciminelli-Cowper Co., 248 AD2d 1019). (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Summary Judgment.) Present — Green, J. P., Hayes, Pigott, Jr., and Scudder, JJ.