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Nathan v. Rochester Housing Authority

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


December 30, 2009

DAREYA NATHAN, AN INFANT, BY HER PARENTS AND NATURAL GUARDIANS, DARYL NATHAN AND ANOTHER, ET AL., APPELLANTS,
v.
ROCHESTER HOUSING AUTHORITY, RESPONDENT.

Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered February 6, 2009 in a personal injury action. The order denied the motion of plaintiffs for partial summary judgment.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 10, 2010

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

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. "Plaintiff[s'] 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.P., Fahey, Carni and Green, JJ.

20091230

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