FOTIATIS v. CAMBRIDGE HALL TENANTS CORP (2010)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered December 16, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant submitted evidence sufficient to establish, prima facie, that it did not create the condition that proximately caused the plaintiff's injuries (cf. Shindler v. Warf, 66 A.D.3d 762, 887 N.Y.S.2d 193).   The plaintiff fell on a public roadway adjacent to the defendant's premises.   She allegedly slipped and fell on a portion of a torn garbage bag and/or a banana peel protruding therefrom, that was hanging over the curb into the roadway.   The plaintiff alleged that the material was caused to be in the roadway as a consequence of the manner in which the defendant stacked garbage bags on the sidewalk.

 “Where the moving party has established prima facie that it is entitled to summary judgment, the party opposing the motion must demonstrate the existence of a factual issue requiring a trial of the action by admissible evidence, not mere conjecture, suspicion, or speculation” (Leggio v. Gearhart, 294 A.D.2d 543, 544, 743 N.Y.S.2d 135;  see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The plaintiff failed to demonstrate the existence of a triable issue of fact (see Xhika v. Trizechahn Regional Pooling, LLC, 49 A.D.3d 719, 720, 854 N.Y.S.2d 449;  Grob v. Kings Realty Assoc., 4 A.D.3d 394, 771 N.Y.S.2d 384;  Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 478, 735 N.Y.S.2d 585;  Deegan v. 336 E. 50th St. Tenants Corp., 216 A.D.2d 59, 627 N.Y.S.2d 383).   The affidavit of the plaintiff's expert in opposition to the motion was speculative and conclusory, and his opinion was not supported by empirical data or any relevant industry standard.   Accordingly, the expert's affidavit was not sufficient to raise a triable issue of fact (see Ghany v. Hossain, 65 A.D.3d 517, 884 N.Y.S.2d 125;  Rivas-Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 558, 883 N.Y.S.2d 552;  Gover v. Mastic Beach Prop. Owners Assn., 57 A.D.3d 729, 731, 869 N.Y.S.2d 593).

The plaintiff's remaining contention is without merit.