Masterson v. City of New York

Appellate Division of the Supreme Court of New York

Masterson v. City of New York

272 A.D.2d 591, 709 N.Y.S.2d 831, 2000 N.Y. App. Div. LEXIS 6041

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 30, 2000

StatusPublished

Cited by5 cases

This text of 272 A.D.2d 591 (Masterson v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Masterson v. City of New York, 272 A.D.2d 591, 709 N.Y.S.2d 831, 2000 N.Y. App. Div. LEXIS 6041 (N.Y. Ct. App. 2000).

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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, Queens County (Taylor, J.), dated June 11, 1999, as granted the defendant’s cross motion for summary judgment dismissing the complaint.

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

The Supreme Court properly determined that there was no evidence demonstrating that the defendant was responsible for the wet condition of the slide where the infant plaintiff was injured. The defendant made a prima facie showing of its entitlement to summary judgment, thereby shifting the burden to the plaintiffs to establish the existence of a material issue of fact to preclude the granting of summary judgment (see, Zuckerman v City of New York, 49 NY2d 557). The affidavit of the plaintiffs’ expert averring that the defendant was responsible for the wet condition of the slide was not based on any evidence in the record and, hence, his conclusion was purely speculative and failed to create any issue of fact (see, Glorioso v Schnabel, 253 AD2d 787; Mendes v Whitney-Floral Realty Corp., 216 AD2d 540). Thus, liability cannot be imposed on the defendant, which “merely furnished the condition or occasion for the occurrence of the event”, and was not one of its causes (Shatz v Kutshers Country Club, 247 AD2d 375). Mangano, P. J., Bracken, S. Miller and Goldstein, 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, Queens County (Taylor, J.), dated June 11, 1999, as granted the defendant’s cross motion for summary judgment dismissing the complaint.

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

The Supreme Court properly determined that there was no evidence demonstrating that the defendant was responsible for the wet condition of the slide where the infant plaintiff was injured. The defendant made a prima facie showing of its entitlement to summary judgment, thereby shifting the burden to the plaintiffs to establish the existence of a material issue of fact to preclude the granting of summary judgment (see, Zuckerman v City of New York, 49 NY2d 557). The affidavit of the plaintiffs’ expert averring that the defendant was responsible for the wet condition of the slide was not based on any evidence in the record and, hence, his conclusion was purely speculative and failed to create any issue of fact (see, Glorioso v Schnabel, 253 AD2d 787; Mendes v Whitney-Floral Realty Corp., 216 AD2d 540). Thus, liability cannot be imposed on the defendant, which “merely furnished the condition or occasion for the occurrence of the event”, and was not one of its causes (Shatz v Kutshers Country Club, 247 AD2d 375). Mangano, P. J., Bracken, S. Miller and Goldstein, JJ., concur.

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Bluebook (online)

272 A.D.2d 591, 709 N.Y.S.2d 831, 2000 N.Y. App. Div. LEXIS 6041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masterson-v-city-of-new-york-nyappdiv-2000.

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