FRASER v. RECLAIM HOUSING DEVELOPMENT FUND CORPORATION (2020)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered September 16, 2019, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment dismissing the complaint.

The record demonstrates that defendants may not be held liable for the injuries sustained by plaintiff when, upon tripping over speaker wires, he fell out of his bedroom window and onto the sidewalk below.  Defendants met their burden for summary judgment by submitting evidence that the window, neither by its configuration or condition, presented a hazard in and of itself, and that defendants had no statutory or common-law duty to install window guards or stops for the benefit of adult plaintiff (see Milano v. 340 E. 74th St. Owners Corp., 158 A.D.3d 479, 70 N.Y.S.3d 485 [1st Dept. 2018];  compare Yahudah v. Metro N. Riverview House, 129 A.D.2d 429, 513 N.Y.S.2d 693 [1st Dept. 1987] [finding issue of fact whether lack of stops in horizontally opening sliding sash window created dangerous condition, where expert opined lack of stops permitted this type of window to be opened easily and accidentally to full width and was a departure from standard building maintenance practice]).

Plaintiff's expert's affidavit was insufficient to defeat the motion for summary judgment as it was not based on any rules, regulations, codes, standards or on the factual record (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002]);  Park v. Kovachevich, 116 A.D.3d 182, 982 N.Y.S.2d 75 [1st Dept. 2014]).