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Mestric v. Martinez Cleaning Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jun 23, 2003
306 A.D.2d 449 (N.Y. App. Div. 2003)

Opinion

2002-07141

Argued May 30, 2003.

June 23, 2003.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated June 27, 2002, which granted the defendants' motion for summary judgment dismissing the complaint.

Friedman Friedman, New York, N.Y. (Daniel J. Friedman and Seligson, Rothman Rothman [Martin S. Rothman and Alyne I. Diamond] of counsel), for appellant.

Miranda Sokoloff, LLP, Mineola, N.Y. (Neil L. Sambursky and Steven Seltzer of counsel), for respondents.

Before: SANDRA J. FEUERSTEIN, J.P., ROBERT W. SCHMIDT, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. The defendants demonstrated their entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557). In opposition, the plaintiff failed to sufficiently identify the alleged substance which caused her to fall (see Lee v. Rite Aid of N.Y., 261 A.D.2d 368; Guzman v. Initial Contract Servs., 256 A.D.2d 308; Pizzi v. Bradlee's Div. of Stop Shop, 172 A.D.2d 504, 505). The plaintiff merely speculated that she slipped and fell on an improperly waxed or polished floor (see Silver v. Brodsky, 112 A.D.2d 213). Moreover, the plaintiff's affidavit was insufficient to show the existence of a triable issue of fact because it contradicted her earlier deposition testimony and was clearly designed to avoid the consequences of her earlier admissions (see Hartman v. Mountain Valley Brew Pub, 301 A.D.2d 570; Marcelle v. New York City Tr. Auth., 289 A.D.2d 459; Garvin v. Rosenberg, 204 A.D.2d 388). The expert affidavit submitted by the plaintiff failed to raise a question of fact because it was speculative, unsubstantiated, and conclusory (see Banks v. Freeport Union Free School Dist., 302 A.D.2d 341; Lindeman v. Vecchione Constr. Corp., 275 A.D.2d 392; Brandefine v. National Cleaning Contr., 265 A.D.2d 441).

FEUERSTEIN, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.


Summaries of

Mestric v. Martinez Cleaning Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jun 23, 2003
306 A.D.2d 449 (N.Y. App. Div. 2003)
Case details for

Mestric v. Martinez Cleaning Co., Inc.

Case Details

Full title:DONNA MESTRIC, appellant, v. MARTINEZ CLEANING CO., INC., ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 23, 2003

Citations

306 A.D.2d 449 (N.Y. App. Div. 2003)
761 N.Y.S.2d 504

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