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Sarver v. Martyn

Appellate Division of the Supreme Court of New York, Second Department
May 14, 1990
161 A.D.2d 623 (N.Y. App. Div. 1990)

Opinion

May 14, 1990

Appeal from the Supreme Court, Westchester County (Miller, J.).


Ordered that the order and judgment is affirmed, with costs.

It is well settled that in order to successfully resist a motion for summary judgment, the opposing party "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562; see also, Gervasio v. Di Napoli, 134 A.D.2d 235, 236). In this case, the plaintiff's papers are fatally deficient with respect to a most crucial issue, i.e., what in fact caused the horse, which was supplied by the defendants, to suddenly fall to the ground and throw the plaintiff from the saddle. The plaintiff's conclusion that the horse was sick is unsupported by any probative evidence and amounts to sheer speculation. "Mere hope that somehow the [plaintiff] will uncover evidence that will prove [his] case, provides no basis, pursuant to CPLR 3212 (f), for postponing a decision on a summary judgment motion" (Kennerly v. Campbell Chain Co., 133 A.D.2d 669, 670).

Further, the doctrine of res ipsa loquitur is inapplicable since the plaintiff's injury was of the type which could occur without the neglect of some duty owed to him by the defendants (see, De Witt Props. v. City of New York, 44 N.Y.2d 417, 426; Abbott v. Page Airways, 23 N.Y.2d 502, 512). Neither can liability be inferred by reason of an alleged violation of the New York City Administrative Code by the defendants, since there is no proof that the plaintiff's accident was causally connected to that violation (see, Sheehan v. City of New York, 40 N.Y.2d 496, 501; Chapin v. City of White Plains, 104 A.D.2d 785, 786). Mangano, P.J., Kunzeman, Rubin and Balletta, JJ., concur.


Summaries of

Sarver v. Martyn

Appellate Division of the Supreme Court of New York, Second Department
May 14, 1990
161 A.D.2d 623 (N.Y. App. Div. 1990)
Case details for

Sarver v. Martyn

Case Details

Full title:EDMUND SARVER, Appellant, v. JAMES MARTYN, Doing Business as PELHAM BIT…

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

Date published: May 14, 1990

Citations

161 A.D.2d 623 (N.Y. App. Div. 1990)
555 N.Y.S.2d 402

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