Vazquez v. JRG Realty Corp.

Appellate Division of the Supreme Court of New York

Vazquez v. JRG Realty Corp.

81 A.D.3d 555, 917 N.Y.S.2d 562

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 22, 2011

StatusPublished

Cited by8 cases

This text of 81 A.D.3d 555 (Vazquez v. JRG Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vazquez v. JRG Realty Corp., 81 A.D.3d 555, 917 N.Y.S.2d 562 (N.Y. Ct. App. 2011).

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Opinion

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered October 1, 2009, dismissing plaintiffs’ complaint in its entirety, and bringing up for review an order, same court and Justice, entered July 23, 2009, which granted defendants’ motion for summary judgment, and order, same court and Justice, entered November 25, 2009, which, to the extent appealable, denied plaintiffs’ motion to renew the order entered July 23, 2009, unanimously affirmed, without costs.

In this trip and fall action, the motion court properly found that defendants demonstrated their prima facie entitlement to summary judgment by showing that the defect plaintiff Laura Vazquez alleged she tripped on was trivial (see e.g. Trincere v County of Suffolk, 90 NY2d 976 [1997]; Burko v Friedland, 62 AD3d 462 [2009]) and that plaintiffs, in opposition, failed to demonstrate an issue of fact that would preclude summary judgment. Plaintiff Laura Vazquez’s testimony that the defect was three-quarters of an inch to one inch in height was speculative, since she did not measure the defect herself and she presented no expert testimony. Defendant’s witnesses stated that the area was nearly flat and their expert measured the defect and found it to be the height of a nickel.

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481 [2009], lv dismissed in part and denied in part 13 NY3d 789 [2009]). In any event, plaintiffs’ expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v Cherry Cr., Inc., 66 AD3d 658 [2009]). Concur— Tom, J.P., Sweeny, Acosta, Renwick and Manzanet-Daniels, JJ.

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Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered October 1, 2009, dismissing plaintiffs’ complaint in its entirety, and bringing up for review an order, same court and Justice, entered July 23, 2009, which granted defendants’ motion for summary judgment, and order, same court and Justice, entered November 25, 2009, which, to the extent appealable, denied plaintiffs’ motion to renew the order entered July 23, 2009, unanimously affirmed, without costs.

In this trip and fall action, the motion court properly found that defendants demonstrated their prima facie entitlement to summary judgment by showing that the defect plaintiff Laura Vazquez alleged she tripped on was trivial (see e.g. Trincere v County of Suffolk, 90 NY2d 976 [1997]; Burko v Friedland, 62 AD3d 462 [2009]) and that plaintiffs, in opposition, failed to demonstrate an issue of fact that would preclude summary judgment. Plaintiff Laura Vazquez’s testimony that the defect was three-quarters of an inch to one inch in height was speculative, since she did not measure the defect herself and she presented no expert testimony. Defendant’s witnesses stated that the area was nearly flat and their expert measured the defect and found it to be the height of a nickel.

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481 [2009], lv dismissed in part and denied in part 13 NY3d 789 [2009]). In any event, plaintiffs’ expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v Cherry Cr., Inc., 66 AD3d 658 [2009]). Concur— Tom, J.P., Sweeny, Acosta, Renwick and Manzanet-Daniels, JJ.

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Bluebook (online)

81 A.D.3d 555, 917 N.Y.S.2d 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vazquez-v-jrg-realty-corp-nyappdiv-2011.

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