Reilly v. Carrollwood Homeowners Ass'n

31 A.D.3d 417, 818 N.Y.S.2d 157

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (LaCava, J.), entered June 17, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

On January 2, 2003 the plaintiff slipped and fell on wooden steps along a walkway leading down from her condominium unit to the parking lot of her condominium complex. She alleged that she fell on ice that had formed due to water accumulating in a depression on a warped step; that step allegedly had been warped for some time. In response to the defendant’s prima facie showing that it neither created the complained-of condition nor had notice of it, the plaintiff submitted the affidavit of a safety expert, William Marietta, who concluded that the ice accumulated on that step due to a recurrent dangerous condition. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint. We affirm.

Contrary to the plaintiffs contention, her expert’s affidavit was conclusory and speculative. There is no proof in the record supporting the expert’s claim that the rain that fell prior to the plaintiffs fall accumulated and froze on the allegedly warped portion of the step. Furthermore, there is no meteorological proof as to what the outdoor temperature was prior to the plaintiffs fall nor how long, if at all, it was at or below the freezing point. Finally, the plaintiffs expert’s affidavit was internally contradictory as to how the water could accumulate on that step, even assuming that it was warped in the manner in which the expert claimed it was. Thus, the affidavit was insufficient to raise a triable issue of fact (see Reagan v Hartsdale Tenants Corp., 27 AD3d 716 [2006]; Coyne v Talleyrand Partners, L.P., 22 AD3d 627 [2005], lv denied 6 NY3d 705 [2006]; cf. Uhlinger v Gloversville Enlarged School Dist., 19 AD3d 780 [2005]). Prudenti, P.J., Florio, Krausman and Mastro, JJ., concur.