SEDA v. Juan Jiminez, Defendant. (2006)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 22, 2005, which granted the motion by defendants Port Authority and Koch Skanska for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff's claims based on New York's Labor Law were properly dismissed as inapplicable since they are conduct-regulating, and New Jersey, where the accident occurred, has the greater interest in regulating behavior within its borders (see Padula v. Lilarn Props. Corp., 84 N.Y.2d 519, 522, 620 N.Y.S.2d 310, 644 N.E.2d 1001 [1994];  Florio v. Fisher Dev., 309 A.D.2d 694, 696, 765 N.Y.S.2d 879 [2003];  Webber v. Mutual Life Ins. Co. of N.Y., 287 A.D.2d 369, 370, 731 N.Y.S.2d 447 [2001] ).   Plaintiff has also failed to make out any claim of negligence under New York or New Jersey law.   Indeed, the statements by his expert are entirely conclusory (see Ventura v. Structural Concrete Corp., 227 A.D.2d 235, 642 N.Y.S.2d 298 [1996];  Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 151, 376 A.2d 1211, 1213 [1977] [insufficient proffer included expert's bald, conclusory assertions];  Smith v. Keller Ladder Co., 275 N.J.Super. 280, 285, 645 A.2d 1269, 1272 [1994] [directed verdict for defendant where plaintiff's expert testified in conclusory terms about defective ladder] ), and completely unsupported by the record.   Moreover, the acts of the errant operator in driving while intoxicated, at a high rate of speed, through a gap in the barricades separating his westbound lane of traffic from the eastbound lane that was closed at that time to all but construction workers, was an unforeseeable intervening act breaking the chain of causation of any alleged negligence by defendants (see Perez v. New York Tel. Co., 161 A.D.2d 191, 192, 554 N.Y.S.2d 576 [1990];  Cruz-Mendez v. ISU/Ins. Servs. of San Francisco, 156 N.J. 556, 575-576, 722 A.2d 515, 525 [1999] ).