Laura Vazquez, et al., Plaintiffs-Appellants, v. JRG

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

Laura Vazquez, et al., Plaintiffs-Appellants, v. JRG Realty Corp., et al., Defendants-Respondents.

4338- 4339

Decided: February 22, 2011

Tom, J.P., Sweeny, Acosta, Renwick, Manzanet-Daniels, JJ. Profeta & Eisenstein, New York (Fred R. Profeta Jr., of counsel), for appellants. Kaufman, Borgeest & Ryan, LLP, New York (Dennis J. Dozis of counsel), for respondents.

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Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered October 1, 2009, dismissing plaintiffs' complaint in its entirety, and bringing up for review an order, same court and Justice, entered July 23, 2009, which granted defendants' motion for summary judgment, and order, same court and Justice, entered November 25, 2009, which, to the extent appealable, denied plaintiffs' motion to renew the order entered July 23, 2009, unanimously affirmed, without costs.

In this trip and fall action, the motion court properly found that defendants demonstrated their prima facie entitlement to summary judgment by showing that the defect plaintiff Laura Vazquez alleged she tripped on was trivial (see e.g. Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997];  Burko v. Friedland, 62 AD3d 462 [2009] ) and that plaintiffs, in opposition, failed to demonstrate an issue of fact that would preclude summary judgment.   Plaintiff Laura Vazquez's testimony that the defect was three-quarters of an inch to one inch in height was speculative, since she did not measure the defect herself and she presented no expert testimony.   Defendant's witnesses stated that the area was nearly flat and their expert measured the defect and found it to be the height of a nickel.

No appeal lies from the denial of a motion to reargue (DiPasquale v. Gutfleish, 74 AD3d 471 [2010] ).   Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v. Pullman Group, 60 AD3d 481 [2009], lv dismissed and denied 13 NY3d 789 [2009] ).   In any event, plaintiffs' expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v. Cherry Cr., Inc., 66 AD3d 658 [2009] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK