Opinion
2012-03-20
Yehuda SCHWARTZ, etc., et al., appellants, v. ORANGE AND ROCKLAND UTILITIES, INC., respondent, et al., defendants.
Annette G. Hasapidis, South Salem, N.Y., for appellants. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Harold Y. MacCartney, Jr., of counsel), for respondent.
Annette G. Hasapidis, South Salem, N.Y., for appellants. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Harold Y. MacCartney, Jr., of counsel), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated September 20, 2010, as granted that branch of the motion of the defendant Orange and Rockland Utilities, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The infant plaintiff allegedly was injured when he fell from his bicycle after a wheel struck a hole in the roadway near the intersection of Adams Lane and Roosevelt Street in the Town of Ramapo. The plaintiffs alleged that the defendant Orange and Rockland Utilities, Inc. (hereinafter O & R), had negligently performed excavation and repair work at the site approximately three years earlier.
A contractor 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 Brown v. Welsbach Corp., 301 N.Y. 202, 205, 93 N.E.2d 640; Minier v. City of New York, 85 A.D.3d 1134, 1134–1135, 926 N.Y.S.2d 621; Sand v. City of New York, 83 A.D.3d 923, 925, 921 N.Y.S.2d 312). As the movant, O & R bore the initial burden of making a prima facie showing that it did not create the alleged dangerous condition which caused the infant plaintiff to fall ( see Sand v. City of New York, 83 A.D.3d at 925, 921 N.Y.S.2d 312; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
In support of O & R's motion, its submissions, including the deposition testimony of its witness, were sufficient to establish, prima facie, that O & R did not create the alleged dangerous condition which caused the infant plaintiff to fall off of his bicycle ( cf. Hayes v. DeMicco Bros., Inc., 34 A.D.3d 641, 642, 825 N.Y.S.2d 116; King v. County of Nassau, 262 A.D.2d 533, 692 N.Y.S.2d 430). In opposition, the plaintiffs failed to raise a triable issue of fact with the affidavit of their expert. We agree with the Supreme Court that this expert's conclusions were speculative and conclusory ( see DiGregorio v. Fleet Bank of N.Y., NA, 60 A.D.3d 722, 724, 875 N.Y.S.2d 204).