Opinion
2012-02-7
Vinston JEANSIMON, etc., respondent, v. David E. LUMSDEN, et al., appellants.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill, Andrea E. Ferrucci, and Thomas C. Craven, Jr., of counsel), for appellant David E. Lumsden. Harris Law, New York, N.Y. (Matthew Gaisi of counsel), for respondent.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill, Andrea E. Ferrucci, and Thomas C. Craven, Jr., of counsel), for appellant David E. Lumsden. Harris Law, New York, N.Y. (Matthew Gaisi of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Martin, J.), dated February 18, 2011, which denied the motion of the defendant David E. Lumsden for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the appeal by the defendant Estella A. Lumsden is dismissed as abandoned ( see 22 NYCRR 670.8[c] ), and on the additional ground that she is not aggrieved by the order appealed from ( see CPLR 5511); and it is further,
ORDERED that the order is reversed on the appeal by the defendant David E. Lumsden, on the law, and the motion of the defendant David E. Lumsden for summary judgment dismissing the complaint insofar as asserted against him is granted; and it is further,
ORDERED that one bill of costs is awarded to the defendant David E. Lumsden.
On August 13, 2009, the then 14–year old plaintiff, Vinston Jeansimon (hereinafter the plaintiff), allegedly was injured when, while playing tag with his friends, he slipped and fell on a slick substance on the public roadway on Barbey Street in Brooklyn. The plaintiff alleged that he slipped and fell on a fresh spot of oil that came from a motor vehicle owned by the defendant David E. Lumsden (hereinafter the appellant).
The Supreme Court erred in denying the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him. After the appellant established his prima facie entitlement to judgment as a matter of law, the plaintiff, in opposition, failed to raise a triable issue of fact. While a defendant may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk ( see Lau v. City of New York, 22 A.D.3d 529, 802 N.Y.S.2d 254; Smelley v. Ahmed, 3 A.D.3d 559, 560, 771 N.Y.S.2d 167; Skolnik v. City of New York, 296 A.D.2d 454, 455, 745 N.Y.S.2d 200), under the circumstances of this case, it would be mere speculation to conclude that the allegedly dangerous condition which caused the plaintiff to slip and fall was created by any affirmative act of negligence by the appellant. “ Speculation and surmise are insufficient to defeat a motion for summary judgment” ( Skouras v. New York City Tr. Auth., 48 A.D.3d 547, 548, 852 N.Y.S.2d 206; see Cusack v. Peter Luger, Inc., 77 A.D.3d 785, 786, 909 N.Y.S.2d 532; Cohen v. Schachter, 51 A.D.3d 847, 857 N.Y.S.2d 727; Frazier v. City of New York, 47 A.D.3d 757, 850 N.Y.S.2d 552; Smelley v. Ahmed, 3 A.D.3d at 560, 771 N.Y.S.2d 167; Portanova v. Dynasty Meat Corp., 297 A.D.2d 792, 747 N.Y.S.2d 591).
The plaintiff's remaining contentions are without merit.