Secchi v. Waldbaum, Inc.

270 A.D.2d 329, 704 N.Y.S.2d 134, 2000 N.Y. App. Div. LEXIS 2700

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), dated November 19, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion for summary judgment. After the defendant made out a prima facie case for summary judgment, the plaintiff failed to present any evidence that the defendant either created the alleged hazardous condition or had prior actual or constructive notice of the existence of the piece of wood which the plaintiff claims he tripped over (see, Gordon v American Museum of Natural History, 67 NY2d 836). The affidavit of the plaintiffs engineering expert regarding an alleged building code violation by the defendant in failing to install handrails on the ramp at its loading dock was insufficient to defeat the defendant’s motion for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The court correctly determined that even if the alleged building code violation was established, it was not a proximate cause of the accident because the plaintiff testified at an examination before trial that he fell not from the ramp itself, but from an adjoining platform area. Ritter, J. P., Altman, Krausman and Mc-Ginity, JJ., concur.