Littleton v. Hudson Valley Hospital Center

274 A.D.2d 418, 711 N.Y.S.2d 783, 2000 N.Y. App. Div. LEXIS 7735

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Scarpino, J.), entered September 28, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

To defeat the defendant’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff had to demonstrate, in opposition thereto, either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition (see, Gordon v American Museum of Natural History, 67 NY2d 836; Dima v Breslin Realty, 240 AD2d 359, 360).

We agree with the Supreme Court that the plaintiff failed to raise a triable issue of fact. The plaintiff’s contentions that the defendant created the allegedly hazardous condition of the curb or the depression leading up to it, or that either of the alleged conditions had existed for a sufficient length of time to establish constructive notice, were purely speculative. Such speculation is insufficient to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.