| Levy v Kung Sit Huie |
| 2008 NY Slip Op 06807 [54 AD3d 731] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Linda Levy, Appellant, v Kung Sit Huie et al.,Respondents. |
—[*1] Gannon Rosenfarb & Moskowitz, New York, N.Y. (Peter J. Gannon and Steve M.DeVerteuil of counsel), for respondents Kung Sit Huie and Bill Kong Chuck Huie. Huenke & Rodriguez, Melville, N.Y. (Christopher C. Vassallo of counsel), for respondent B& P Chimney Cleaning & Repair Co., Inc. Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Laurence G. McDonnell of counsel), forrespondent Tavella Plumbing & Heating Corp.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.),dated January 9, 2007, as granted (a) the motion of the defendants Kung Sit Huie and Bill KongChuck Huie for summary judgment dismissing the complaint insofar as asserted against them, (b)that branch of the motion of the defendant B & P Chimney Cleaning & Repair Co., Inc., whichwas for summary judgment dismissing the complaint insofar as asserted against it, and (c) thatbranch of the motion of the defendant Tavella Plumbing & Heating Corp. which was forsummary judgment dismissing the complaint insofar as asserted against it, and (2) from an orderof the same court dated June 26, 2007, which denied her motion for leave to renew and rearguethe defendants' respective motions for summary judgment.
Ordered that the appeal from the order dated June 26, 2007, is dismissed; and it is further,
Ordered that the order dated January 9, 2007, is affirmed insofar as appealed from; and it isfurther,[*2]
Ordered that one bill of costs is awarded to thedefendants appearing separately and filing separate briefs.
The deposition testimony of the defendant Kung Sit Huie, nonparty Paul Lonergan, thepresident of the defendant B & P Chimney Cleaning Repair Co., Inc., and nonparty VincentTavella, the president of the defendant Tavella Plumbing & Heating Corp., submitted by thedefendants on their respective motions, established their prima facie entitlement to summaryjudgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, theplaintiff failed to raise a triable issue of fact. The affidavits of the plaintiff's experts regardingboiler repair and carbon monoxide toxicity were speculative, conclusory, and not based on eitherindustry standards or other foundational facts (see Romano v Stanley, 90 NY2d 444,451-452 [1997]; Rizzo vSherwin-Williams Co., 49 AD3d 847 [2008]; Reddy v 369 Lexington Ave. Co., L.P., 31 AD3d 732, 733 [2006];Canales v Hustler Mfg. Co., 12AD3d 392 [2004]). The references in the affidavit of the plaintiff's boiler repair expert to theAdministrative Code of the City of New York §§ 27-127 and 27-128, "arenonspecific and reflect only the general duty [of a landowner] to maintain premises in a safecondition" (Jang Hee Lee v Sung WhunOh, 3 AD3d 473, 474 [2004]). Moreover, under the circumstances of this case, thedefendants were not required to submit expert affidavits (see Thomas v Richie, 8 AD3d 363, 364 [2004]).
No appeal lies from an order denying reargument. Moreover, the plaintiff raised no issueregarding the denial of that branch of her motion which was for leave to renew in her main brief.The issue was raised for the first time in her reply brief. Thus, she abandoned whatever argumentshe may have had with respect to the appeal from so much of the order dated June 26, 2007, asdenied that branch of her motion which was for leave to renew (see Vasquez v Wood, 18 AD3d645, 646-647 [2005]). Therefore, the appeal from the order dated June 26, 2007, should bedismissed.
The contention of the defendants Kung Sit Huie and Bill Kong Chuck Huie with respect totheir motion for leave to amend their answer to include a statute of limitations defense has beenrendered academic in light of our determination.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Florio, Dickerson andBelen, JJ., concur.