HABERMAN v. CHEESECAKE FACTORY RESTAURANTS INC (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Roberto, J.), dated March 3, 2006, which, upon an order of the same court dated November 7, 2005, granting the defendants' motion for summary judgment dismissing the complaint, is in favor of the defendants and against her dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

On appeal, the plaintiff concedes that the defendants established their entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that they neither created the alleged defect nor had actual or constructive notice of the alleged defect.   Contrary to the plaintiff's contention, she failed to submit evidence sufficient to defeat the defendants' entitlement to judgment as a matter of law.   The plaintiff's expert affidavit, submitted in opposition to the motion, was speculative and conclusory, and thus, insufficient to raise a triable issue of fact as to whether the defendants created the alleged defect during the original construction or installation of the staircase (see Reyes v. City of New York, 29 A.D.3d 667, 814 N.Y.S.2d 873;  Paladino v. Time Warner Cable of N.Y. City, 16 A.D.3d 646, 793 N.Y.S.2d 63).