KING v. Hendrickson Brothers, Inc., appellant. (1999)

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

Roseann KING, plaintiff-respondent, v. COUNTY OF NASSAU, defendant-respondent, Hendrickson Brothers, Inc., appellant.

Decided: June 21, 1999

FRED T. SANTUCCI, J.P., DANIEL W. JOY, SANDRA J. FEUERSTEIN and ROBERT W. SCHMIDT, JJ.

Brian J. Greenfield, Mineola, N.Y. (Kenneth T. Boyd of counsel), for appellant. Elovich & Adell, Long Beach, N.Y. (Mitchel Sommer of counsel), for plaintiff-respondent. Owen B. Walsh, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), for defendant-respondent.

In an action to recover damages for personal injuries, the defendant Hendrickson Brothers, Inc., appeals from an order of the Supreme Court, Nassau County (De Maro, J.), entered May 1, 1998, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, with one bill of costs.

The appellant failed to proffer sufficient evidence that it properly sealed and restored the street where the plaintiff fell. The fact that the appellant completed its drainage work seven years before the plaintiff's accident is insufficient, without more, to entitle it to summary judgment.

Furthermore, contrary to the appellant's contention, the opinion of the plaintiff's expert submitted in opposition to its motion was based on more than mere speculation (see, Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589, 684 N.E.2d 19).

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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