| Raux v City of Utica |
| 2009 NY Slip Op 00825 [59 AD3d 984] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Ronald J. Raux, Jr., Appellants, v City of Utica, Respondent. |
—[*1] Linda Sullivan Fatata, Corporation Counsel, Utica (Armond J. Festine of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered October 22, 2007 in a personal injury action. The order granted defendant's motion forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by plaintiff Ronald J. Raux, Jr. when he stepped into an unmarked hole on a golfcourse operated and maintained by defendant. The hole, which was about 18 to 24inches deep, was located 2 to 3 feet from the fringe of the green on the 12th hole of the golfcourse and was camouflaged by the 2½-inch rough. We conclude that Supreme Courtproperly granted defendant's motion for summary judgment dismissing the complaint. Defendantmet its initial burden on the motion by establishing that it did not create the allegedly dangerouscondition and did not have actual or constructive notice of it (see Wesolek v Jumping Cow Enters., Inc., 51 AD3d 1376, 1377[2008]; see generally Gordon v American Museum of Natural History, 67 NY2d 836,837-838 [1986]). Plaintiffs' speculation with respect to the source of the hole is insufficient toraise a triable issue of fact to defeat the motion (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]; Rachlin v Volvo Cars of N. Am., 289 AD2d 981,982 [2001]). Contrary to the contention of plaintiffs, they failed to defeat the motion by theirsubmission of a hearsay statement made by a person who allegedly overheard a golf courseemployee comment that the hole in question was "a drainage hole that [the course] had dug."Although hearsay evidence may be considered in opposition to a motion for summary judgment,it is by itself insufficient to defeat such a motion (see Gier v CGF Health Sys., 307 AD2d729, 730 [2003]; Arnold v New York City Hous. Auth., 296 AD2d 355, 356 [2002]), andhere the sole basis for plaintiffs' opposition to the motion, other than speculation, was thathearsay statement. Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.