Summary
holding that the expert's "speculation as to the cause of the defect and the adequacy of Con Ed's inspection schedule is insufficient to raise a triable issue of fact, because there is no evidence that Con Ed returned to work at the site after October 29, 2002 or that anyone ever reported or noticed a condition before the accident"
Summary of this case from Espinoza v. Federated Dept. StoresOpinion
No. 197 SSM 29.
Decided September 11, 2008.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered January 29, 2008. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Marilyn Shafer, J.), which, to the extent appealed from, had granted a motion by defendant Consolidated Edison Company of New York for summary judgment dismissing the complaint as against it.
Plaintiff allegedly tripped on metal sidewalk grating owned by defendant power company. The Appellate Division concluded that defendant had established its prima facie entitlement to summary judgment by demonstrating that it neither created nor had actual or constructive notice of the one-inch bulge in the sidewalk grating; that defendant satisfied its burden by submitting the uncontested testimony of an employee that he had inspected the grate less than five months before the accident and found no defect; that none of plaintiffs submissions in opposition created an issue of fact; and that the photograph of the grate, taken after the accident, did not indicate a condition that must have been of long duration.
Di Sanza v City of New York, 47 AD3d 535, affirmed.
Susan R. Nudelman, Dix Hills, for appellant. Richard W. Babinecz, New York City, and Helman R. Brook for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed with costs. We agree with the majority at the Appellate Division that, under the particular circumstances of this case, defendant Consolidated Edison Company of New York's evidentiary submissions were sufficient to establish its prima facie entitlement to judgment as a matter of law on the ground that it neither created nor had actual or constructive notice of the one-inch bulge in the sidewalk grating. We further conclude that plaintiffs introduction of the postaccident photographs, which were not probative of the duration of the bulge, and the conclusory affidavit from his expert were insufficient to raise a triable issue of fact ( see Batton v Elghanayan, 43 NY2d 898, 900 [photographs are not always sufficient to prove constructive notice]; see also Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545; Romano v Stanley, 90 NY2d 444, 451-452 [conclusory expert affidavit, devoid of evidentiary foundation, insufficient to defeat summary judgment]).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.