BOHAN v. SHEET METAL CONTRACTING CORPORATION

Reset A A Font size: Print

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

Edward BOHAN, et al., appellants, v. F.R.P. SHEET METAL CONTRACTING CORPORATION, et al., respondents, et al., defendant.

Decided: January 27, 2009

ANITA R. FLORIO, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and JOHN M. LEVENTHAL, JJ. James M. Lane, New York, N.Y., for appellants. Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Brian Greenwood of counsel), for respondent F.R.P. Sheet Metal Contracting Corporation. Mulholland, Minion & Roe, Williston Park, N.Y. (Christine M. Gibbons and John A. Beyrer of counsel), for respondent RC Dolner, Inc. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Stacy Malinow of counsel), for respondent J.T. Falk & Company, LLC. Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (James A. Rogers of counsel), for respondent Five Star Electric Corp.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated May 30, 2007, as granted that branch of the motion of the defendant RC Dolner, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it and granted those branches of the separate cross motions of the defendants F.R.P. Sheet Metal Contracting Corporation, J.T. Falk & Company, LLC, and Five Star Electric Corp., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The defendants F.R.P. Sheet Metal Contracting Corporation, RC Dolner, Inc., J.T. Falk & Company, LLC, and Five Star Electric Corp. (hereinafter the defendants) established, prima facie, their entitlement to judgment as a matter of law.   In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The Supreme Court correctly concluded that the expert affidavit submitted by the plaintiffs failed to raise a triable issue of fact.   In his affidavit, the expert did not sufficiently “identify any specific industry standard upon which he relied,” nor did he supply any specific statutory or code violations (Milligan v. Sharman, 52 A.D.3d 1238, 1239, 859 N.Y.S.2d 827;  see Lombardo v. Cedar Brook Golf & Tennis Club, Inc., 39 A.D.3d 818, 819, 834 N.Y.S.2d 326;  Fitzgerald v. Sears, Roebuck & Co., 17 A.D.3d 522, 523, 793 N.Y.S.2d 164;  Veccia v. Clearmeadow Pistol Club, 300 A.D.2d 472, 752 N.Y.S.2d 84;  Cicero v. Selden Assoc., 295 A.D.2d 391, 392, 743 N.Y.S.2d 551).   Thus, the expert's affidavit was insufficient to defeat the defendants' entitlement to summary judgment (see Romano v. Stanley, 90 N.Y.2d 444, 451, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Murphy v. Conner, 84 N.Y.2d 969, 972, 622 N.Y.S.2d 494, 646 N.E.2d 796;  Veccia v. Clearmeadow Pistol Club, 300 A.D.2d at 472, 752 N.Y.S.2d 84).

In light of the foregoing, we need not reach the plaintiffs' remaining contention.

Copied to clipboard