SOLOW v. LIEBMAN (1999)

Supreme Court, Appellate Division, Second Department, New York.

Sheldon H. SOLOW, appellant, v. Irving LIEBMAN, respondent.

Decided: June 28, 1999

SONDRA MILLER, J.P., DANIEL W. JOY, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ. Dreier & Baritz, LLP, New York, N.Y. (Marc S. Dreier and Joel A. Cherno of counsel), and Mintz & Gold, LLP, New York, N.Y. (Vito J. Titone of counsel), for appellant (one brief filed). Farrell Fritz, P.C., Uniondale, N.Y. (John M. Armentano and Miriam E. Villani of counsel), for respondent.

In an action, inter alia, to recover damages for private nuisance and for injunctive relief, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated April 6, 1998, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated July 13, 1998, which denied his motion for leave to submit a supplemental affidavit.

ORDERED that the orders are affirmed, with one bill of costs.

 In support of the defendant's motion for summary judgment, he made a prima facie showing that the plaintiff's claims that certain inland property had been damaged or diminished in value by the defendant's construction were conclusory, speculative, and unsubstantiated.   The expert affidavit offered in opposition to the motion was based on conclusory allegations, which were without any independent factual basis, and therefore insufficient to defeat the motion for summary judgment (see, Aghabi v. Sebro, 256 A.D.2d 287, 681 N.Y.S.2d 333;  Young v. Fleary, 226 A.D.2d 454, 640 N.Y.S.2d 593).

 The court did not improvidently exercise its discretion in denying the plaintiff's application for leave to submit a supplemental affidavit almost four months after the return date of the motion (see, CPLR 2214;  Risucci v. Zeal Mgt. Corp., 258 A.D.2d 512, 685 N.Y.S.2d 280;  Romeo v. Ben-Soph Food Corp., 146 A.D.2d 688, 537 N.Y.S.2d 52).

MEMORANDUM BY THE COURT.