Lopez v. Retail Property Trust

118 A.D.3d 676, 986 N.Y.S.2d 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 2014
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brown, J.), entered May 16, 2012, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint. The defendants showed that the subject escalator was functioning properly before and after the accident and that they did not have notice of any defect (see Lasser v Northrop Grumman Corp., 55 AD3d 561 [2008]; Hardy v Lojan Realty Corp., 303 AD2d 457 [2003]).

In opposition, the plaintiff submitted an expert’s affidavit. As the expert’s affidavit is speculative and conclusory, and assumes facts not supported by the evidence, it does not raise a triable issue of fact (see Shapiro v Gurwin Jewish Geriatric Nursing & Rehabilitation Ctr., 84 AD3d 1348 [2011]; Ioffe v Hampshire House Apt. Corp., 21 AD3d 930 [2005]; Gralnik v Brighton Beach Assoc., 3 AD3d 518 [2004]; Scola v Sun Intl. N. Am., 279 AD2d 466 [2001]). Therefore, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

Mastro, J.E, Leventhal, Chambers and Austin, JJ., concur.