Summary
granting summary judgment to defendants where plaintiffs were unable to "connect the accident to any negligence on the part of the respondents" and the affidavit provided by plaintiffs' expert "consisted of sheer speculation as to any negligence on the part of the respondents and additionally failed to connect even that alleged negligence with the [plaintiff's] injury"
Summary of this case from Molina v. United StatesOpinion
February 9, 1998
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the order is affirmed, with one bill of costs.
The respondents' submissions demonstrated that the plaintiffs were unable to establish how the infant-plaintiff's accident occurred or even to connect the accident to any negligence on the part of the respondents. The burden therefore shifted to the plaintiffs to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562). The plaintiffs failed to submit any probative evidence in admissible form to support their claim that the infant-plaintiff's injury was caused by a defect in an escalator ( see, Reyes v. Rentar Dev. 207 A.D.2d 336). The affidavit of the plaintiffs' expert which in substance consisted of sheer speculation as to any negligence on the part of the respondents and additionally failed to connect even that alleged negligence with the infant's injury was patently insufficient to meet the plaintiffs' burden ( see, Zuckerman v. City of New York, supra). The doctrine of res ipsa loquitur is inapplicable to the facts of this case as the plaintiffs failed to show with any certainty what caused the infant-plaintiff's injuries, or that the respondents had exclusive control of the alleged offending instrumentality ( see, Eaton v. New York Cent. Hudson Riv. R. R. Co., 195 N.Y. 267; Digelormo v. Weil, 260 N.Y. 192; Brathwaite v. Equitable Life Assur. Socy., 232 A.D.2d 352; cf., Kambat v. St. Francis Hosp., 89 N.Y.2d 489; Wen-Yu Chang v. Woolworth Co., 196 A.D.2d 708). Summary judgment was therefore properly granted in favor of the respondents ( see, Reyes v. Rentar Dev. supra).
Joy, J.P., Krausman, Florio and McGinity, JJ., concur.