               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

687
CA 11-01153
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


KENNETH M. SCHLAU, JR., PLAINTIFF-APPELLANT,

                    V                                     MEMORANDUM AND ORDER

CITY OF BUFFALO, ET AL., DEFENDANTS,
AND FREY ELECTRIC CONSTRUCTION CO., INC.,
DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (KIMBERLY A.
GEORGER OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Diane Y. Devlin, J.), entered February 17, 2011 in
a personal injury action. The order and judgment, among other things,
granted the motion of defendant Frey Electric Construction Co., Inc.
for summary judgment dismissing the amended complaint and cross claims
against it.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by denying the motion of Frey
Electric Construction Co., Inc. without prejudice and reinstating the
amended complaint and cross claims against it and as modified the
order and judgment is affirmed without costs.

     Memorandum: Plaintiff, an employee of a concessionaire at
defendant HSBC Arena (Arena), commenced this action seeking damages
for injuries he sustained after receiving an electrical shock from the
handle of an electronically secured door at the Arena. We conclude
that Supreme Court erred in granting the motion of defendant Frey
Electric Construction Co., Inc. (Frey) seeking summary judgment
dismissing the amended complaint and cross claims against it. Frey’s
“motion is premature because discovery has not been completed,
including depositions concerning the respective roles, if any, of the
parties involved in the accident” (Syracuse Univ. v Games 2002, LLC,
71 AD3d 1531, 1531-1532). We therefore modify the order and judgment
by denying Frey’s motion without prejudice and reinstating the amended
complaint and cross claims against it (see Coniber v Center Point
Transfer Sta., Inc., 82 AD3d 1629; Hobbs v Enprotech Corp., 12 AD3d
                           -2-                  687
                                          CA 11-01153

1063, 1064).




Entered:   June 15, 2012         Frances E. Cafarell
                                 Clerk of the Court
