Dremeaux v. St. Francis Cemetery

Appellate Division of the Supreme Court of New York

Dremeaux v. St. Francis Cemetery

303 A.D.2d 542, 756 N.Y.S.2d 460, 2003 N.Y. App. Div. LEXIS 2701

Appellate Division of the Supreme Court of the State of New York·Decided March 17, 2003·Published·Cited by 1 cases

Opinion

—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, Westchester County (LaCava, J.), entered March 25, 2002, as granted the motion of the defendants third-party plaintiffs for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants demonstrated their entitlement to judgment as a matter of law by submitting evidence which showed that they did not create or have actual or constructive notice of the alleged dangerous condition which caused the infant plaintiff’s injury (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Blaszczyk v Riccio, 266 AD2d 491 [1999]; Freeman v Cobos, 240 AD2d 698 [1997]).

The affidavit of the plaintiffs’ expert was insufficient to defeat the defendants’ motion for summary judgment because it was speculative, conclusory, and unsubstantiated (see Billordo v E.P. Realty Assoc., 300 AD2d 523 [2002]; Rovegno v Church of the Assumption, 268 AD2d 576 [2000]; Ambrosio v South Huntington Union Free School Dist., 249 AD2d 346 [1998]). Accordingly, the plaintiffs failed to raise a triable issue of fact, and the defendants’ motion for summary judgment was properly granted (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Ritter, J.P., Santucci, Feuerstein and Schmidt, JJ., concur.

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—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, Westchester County (LaCava, J.), entered March 25, 2002, as granted the motion of the defendants third-party plaintiffs for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants demonstrated their entitlement to judgment as a matter of law by submitting evidence which showed that they did not create or have actual or constructive notice of the alleged dangerous condition which caused the infant plaintiff’s injury (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Blaszczyk v Riccio, 266 AD2d 491 [1999]; Freeman v Cobos, 240 AD2d 698 [1997]).

The affidavit of the plaintiffs’ expert was insufficient to defeat the defendants’ motion for summary judgment because it was speculative, conclusory, and unsubstantiated (see Billordo v E.P. Realty Assoc., 300 AD2d 523 [2002]; Rovegno v Church of the Assumption, 268 AD2d 576 [2000]; Ambrosio v South Huntington Union Free School Dist., 249 AD2d 346 [1998]). Accordingly, the plaintiffs failed to raise a triable issue of fact, and the defendants’ motion for summary judgment was properly granted (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Ritter, J.P., Santucci, Feuerstein and Schmidt, JJ., concur.

Dremeaux v. St. Francis Cemetery, 303 A.D.2d 542, 756 N.Y.S.2d 460, 2003 N.Y. App. Div. LEXIS 2701 (N.Y. Ct. App. 2003).

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