Savage v. Oyster Bay Columbians, Inc.

244 A.D.2d 472, 665 N.Y.S.2d 918, 1997 N.Y. App. Div. LEXIS 11603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (DiNoto, J.), entered October 9, 1996, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

In this slip and fall case, the affidavit of the plaintiffs’ expert contained nothing more than mere surmise and conjecture. It was therefore insufficient to demonstrate the existence of a triable issue of fact as to whether the floor upon which the plaintiff Arlene Savage slipped was improperly waxed (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; see also, Borelli v 1051 Realty Corp., 242 AD2d 517; Beary v Waterview Nursing Care Ctr., 242 AD2d 516).

We note that the plaintiffs have abandoned on appeal any contention that the defendants had notice, actual or constructive, of the condition, and rely solely on their allegation that the defendants created the condition complained of.

The plaintiffs’ remaining contentions are academic in light of this determination. Pizzuto, J. P., Santucci, Joy and Florio, JJ., concur.