| Ortner v City of New York |
| 2008 NY Slip Op 03395 [50 AD3d 475] |
| April 17, 2008 |
| Appellate Division, First Department |
| Geraldine L. Ortner, Appellant, v City of New York,Defendant, and E.J. Excavating Company, Inc., Respondent. (And a Third-PartyAction.) |
—[*1] Baxter, Smith, Tassan & Shapiro, P.C., Hicksville (Joseph M. Guzzardo of counsel), forrespondent.
Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered January 26, 2007, whichgranted defendant E.J. Excavating Company's cross motion for summary judgment dismissingthe complaint, unanimously affirmed, without costs.
Respondent E.J. Excavating satisfied its burden of establishing prima facie entitlement tosummary judgment with evidence that its repaving of the roadway in 1989 was satisfactorilyperformed and approved by the City. In opposition, plaintiff failed to raise a triable issue of fact.There was no evidence to support the conclusory opinion in plaintiff's expert's affidavit thatplaintiff's accident was caused by a street pavement condition "due to the improper originalplacement of the asphalt pavement [i.e., the repaving work performed by respondent more than adecade earlier] or by failing to allow enough time for the asphalt to cure before re-opening theroad to traffic." The speculative nature of this opinion is underscored by its contrast with theopinion set forth in his report, prepared five years earlier. The report concluded that the defecthad been in existence for "at least several months," whereas the expert opined in his subsequentaffidavit, as noted, that the condition had been in existence since the "original placement of theasphalt," over a decade earlier. There is no suggestion in the report, nor any evidence from whichit can be inferred, that the condition could have existed for that length of time. Moreover, [*2]the expert fails to rule out other causes of the alleged defect, such asthe mere passage of time or heavy use of the road (see Matter of Aetna Cas. & Sur. Co. vBarile, 86 AD2d 362, 364 [1982]). Concur—Andrias, J.P., Friedman, Buckley,Catterson and Acosta, JJ.