| Gover v Mastic Beach Prop. Owners Assn. |
| 2008 NY Slip Op 09957 [57 AD3d 729] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Brian Gover et al., Appellants, v Mastic Beach Property OwnersAssociation et al., Respondents. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin J. Bryant of counsel), for respondentMastic Beach Property Owners Association. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondentSteven Longo. Robert P. Tusa, Hauppauge, N.Y. (Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. [MichaelG. Kruzynski], of counsel), for respondent Lori Bray.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of theSupreme Court, Suffolk County (R. Doyle, J.), dated October 2, 2007, which granted the motion ofthe defendant Mastic Beach Property Owners Association, and the separate motions of the defendantSteven Longo and the defendant Lori Bray, for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with one bill of costs to the respondents appearing separatelyand filing separate briefs.
Brian E. Gover (hereinafter the injured plaintiff), a Suffolk County Police Officer, allegedly wasinjured when dock number 31 located at Pattersquash Creek, in Mastic Beach, collapsed while he wasstanding on it during the investigation of a boat fire.[*2]
As a general rule, liability for a dangerous condition on realproperty must be predicated upon ownership, occupancy, control, or special use of that property(see Morrison v Gerlitzky, 282 AD2d 725 [2001]; Millman v Citibank, 216 AD2d278 [1995]; Golds v Del Aguila, 259 AD2d 942 [1999]; Allen v Pearson Publ. Empire,256 AD2d 528 [1998]). Where none of these factors are present, a party cannot be held liable forinjuries caused by the allegedly defective condition (see Dugue v 1818 Newkirk Mgt. Corp.,301 AD2d 561, 562 [2003]; Aversano v City of New York, 265 AD2d 437 [1999]).Liability can be imposed upon a landowner or a lessee who creates a defective condition on theproperty, or had actual or constructive notice of the allegedly defective condition (see Warren vWilmorite, Inc., 211 AD2d 904, 905 [1995]).
Here, in support of their separate motions for summary judgment, the defendants Steven Longoand Lori Bray submitted their deposition testimony that they did not use dock number 31 in 2003, andalso submitted their respective leases which expired approximately one month before the injuredplaintiff's accident. Thus, Longo and Bray sufficiently demonstrated that they did not own, control, orhave possession of the subject dock at the time of the injured plaintiff's accident. The defendants furtherestablished that they had no actual or constructive notice of any dangerous condition or defect. Theysubmitted evidentiary proof that nonparty James Bray, while having made repairs to the dock in early2003, inspected it in August 2003, found no problems, and never received any complaints about thedock's condition. In opposition, the plaintiffs failed to raise a triable issue of fact.
While the plaintiffs, in opposition, submitted an expert affidavit from Captain Hugh Stephens, itfailed to raise a triable issue of fact with respect to the dock's condition, since the expert's opinion wasbased on speculation. There was no evidence that the expert inspected the dock (see Banks vFreeport Union Free School Dist., 302 AD2d 341, 342 [2003]), and his opinion was based solelyon the review of unauthenticated photographs of the collapsed dock (see Hlenski v City of New York, 51 AD3d974, 975 [2008] [expert opinion failed to raise an issue of fact where the expert relied uponunauthenticated photographs]; Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d725, 726 [2003] [expert opinion based upon unauthenticated photographs was found insufficient toraise a triable issue of fact]; Avella v Jack LaLanne Fitness Ctrs., 272 AD2d 423, 424 [2000]["affidavit of the plaintiff's expert is of no probative value inasmuch as his opinion was based uponunauthenticated photographs"]).
Moreover, the Supreme Court properly concluded that the plaintiffs failed to establish a claimunder General Municipal Law § 205-e. "A police officer seeking to recover under GeneralMunicipal Law § 205-e must identify a statute or ordinance with which the defendant failed tocomply and must, in addition, set forth facts from which it may be inferred that the defendant'snegligence directly or indirectly caused harm to him or her" (Link v City of New York, 34 AD3d 757, 758 [2006], quoting Quinto v New York City Tr. Auth., 7 AD3d689, 689-690 [2004]; Williams v City of New York, 304 AD2d 562, 563 [2003],affd 2 NY3d 352 [2004]). In this case, the plaintiff relied upon Brookhaven Town Code§ 81-10, which sets forth the standards for constructing residential docks and which was enactedafter dock number 31 had been erected. Thus, the plaintiffs failed to identify a specific safety standardthat was violated by the defendants.
The plaintiffs' remaining contention is without merit. Skelos, J.P., Santucci, Dillon and Covello, JJ.,concur.