Nathan v. Rochester Housing Authority

68 A.D.3d 1820, 890 N.Y.2d 870

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2009
• Status: Published

Opinion

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff daughter when she fell through the balusters of a railing in a building owned by defendant. Contrary to the contention of plaintiffs, Supreme Court properly denied their motion for partial summary judgment on the issue of liability. “Plaintiffs’] expert[s] cited no authority, treatise, standard, building code, article or other corroborating evidence to support [their] assertion that good and accepted engineering and building safety practices called for the installation” of balusters with narrower gaps than those in the building in question (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005]). “The opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards has no probative force where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation” (Wong v Goldbaum, 23 AD3d 277, 279 [2005]; see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Plaintiffs thus failed to meet their initial burden on the motion, and we need not consider the sufficiency of defendant’s opposing papers (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present — Smith, J.R, Fahey, Garni and Green, JJ.