PALO v. PRINCIPIO (2003)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated December 12, 2001, which, inter alia, granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Michael Palo, a martial arts student at the defendants' school, allegedly sustained head injuries in a fall that occurred when he was attempting to execute a kick against a fellow student.   The plaintiffs alleged, inter alia, that the defendants used unsecured rugs at their school, and that the accident was caused by the rugs slipping out from underneath Palo, as he attempted his kick.   As a result, Palo allegedly struck his head on a hard wood floor.

The defendants demonstrated a prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   The burden then shifted to the plaintiffs to come forward with evidence in admissible form to establish the existence of a triable issue of fact requiring a trial (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The plaintiffs failed to do so.   The record does not support the plaintiffs' theory that Palo fell because he slipped on an unsecured rug, and the only indication that the accident happened because of an unsecured rug comes from the affirmation of the plaintiffs' attorney.   While the plaintiffs' attorney referred to the purported deposition testimony of Palo's father, who allegedly witnessed the accident, the attorney did not annex the relevant portion of the transcript to his affirmation, nor did he submit an affidavit from Palo's father.   The affirmation of the plaintiffs' attorney, standing alone, was insufficient to raise a question of fact since he had no personal knowledge of the manner in which the accident occurred (see Falkowitz v. Peters, 294 A.D.2d 330, 741 N.Y.S.2d 725).   We further note that the affidavit of the plaintiffs' purported expert was conclusory and insufficient to raise a triable issue of fact (see Osorio v. Deer Run Assoc. 1985, 231 A.D.2d 504, 647 N.Y.S.2d 93).

The plaintiffs' remaining contentions are without merit.