BRIGGS v. 2244 MORRIS (2006)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 8, 2005, which granted defendants' motion and cross motions for summary judgment dismissing the complaint, and order, same court and Justice, entered September 28, 2005, which denied plaintiff's motion to renew, unanimously affirmed, without costs.

 Plaintiff alleges she sustained injuries caused by a defective radiator in her apartment.   The record is devoid of evidence sufficient to raise a triable issue of fact as to whether defendants created or had notice of the hazard (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994];  Arnold v. New York City Housing Auth., 296 A.D.2d 355, 745 N.Y.S.2d 26 [2002] ).   Defendants met their burden of establishing prima facie entitlement to summary judgment by presenting evidence that a new radiator had been installed in plaintiff's apartment with a temperature control knob attached, that plaintiff did not request a cover for the radiator, and that plaintiff never made any complaints about the radiator.   The burden then shifted to plaintiff, who failed to raise a triable issue of fact to defeat summary judgment.   The court properly rejected an unsworn statement of plaintiff's mother on the issue of notice.   Although hearsay may be used to oppose a summary judgment motion, such evidence is insufficient to warrant denial of summary judgment where, as here, it is the only evidence submitted in opposition (Narvaez v. NYRAC, 290 A.D.2d 400, 737 N.Y.S.2d 76 [2002] ).   Plaintiff's expert affidavit on the issue of defendant Danica Plumbing's negligence lacked any probative value since it was based on the assumption, without evidentiary support, that Danica had installed the radiator without a control knob or that Danica was retained to install a radiator cover (see Quinn v. Artcraft Constr., 203 A.D.2d 444, 445, 610 N.Y.S.2d 598 [1994] ).

The court properly denied renewal since plaintiff's additional submission would not have “change[d] the prior determination” (CPLR 2221 [e] ).