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

Appellate Division of the Supreme Court of the State of New York·Decided May 30, 2000·Published·Cited by 5 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, 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.

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

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