| Pappas v Cherry Cr., Inc. |
| 2009 NY Slip Op 07239 [66 AD3d 658] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Keith Pappas, Appellant-Respondent, v Cherry Creek,Inc., Doing Business as Cherry Creek Golf Course and Cherry Creek Golf Links, et al.,Respondents, and John Randazzo, Jr., Respondent-Appellant. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent-appellant. Perez & Varvaro, Uniondale, N.Y. (John W. Quinn of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Nassau County (Brandveen, J.), entered September 18, 2008, asgranted that branch of the cross motion of the defendants Cherry Creek, Inc., doing business asCherry Creek Golf Course and Cherry Creek Golf Links, Cherry Creek Golf Course, and CherryCreek Golf Links which was for summary judgment dismissing the complaint insofar as assertedagainst them, and the defendant John Randazzo, Jr., cross-appeals, as limited by his brief, fromso much of the same order as denied his motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against him.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendant John Randazzo, Jr., which was for summary judgmentdismissing all cross claims insofar as asserted against him, and substituting therefor a provisiongranting that branch of the motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The plaintiff was a passenger in a golf cart operated by his friend and golfing partner, thedefendant John Randazzo, Jr., on a golf course owned by the defendants Cherry Creek, Inc.,doing business as Cherry Creek Golf Course and Cherry Creek Golf Links, Cherry Creek GolfCourse, and Cherry Creek Golf Links (hereinafter collectively Cherry Creek), when the carttipped over on its right side, allegedly causing the plaintiff to sustain various personal injuries.At the time, the cart was negotiating a U-turn on a path between the sixth green and the seventhtee. Thereafter, the plaintiff commenced this action naming Randazzo and Cherry Creek asdefendants, alleging that Randazzo had been negligent in his operation of the golf cart and thatCherry Creek had been negligent in the design and maintenance of the path on which the golfcart had been traveling.[*2]
The evidence submitted by Randazzo in support of hismotion for summary judgment failed to eliminate all triable issues of fact as to whether theaccident was proximately caused by his operation of the cart at an excessive speed, under thecircumstances existing immediately prior to the occurrence (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Accordingly, it is not necessary to consider thesufficiency of the papers submitted in opposition to Randazzo's motion (id. at 324).
The evidence submitted by Cherry Creek established, prima facie, that the accident was notproximately caused by any negligence on its part in the design and maintenance of the golfcourse (id. at 324). The affidavit of the plaintiff's expert, which was speculative,conclusory, and not based on either industry standards or other foundational facts, failed to raisea triable issue of fact (see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Levy v Kung Sit Huie, 54 AD3d731 [2008]).
Accordingly, the Supreme Court properly granted Cherry Creek's cross motion. In light of itsdetermination awarding summary judgment to Cherry Creek, the Supreme Court should havegranted that branch of Randazzo's motion which was for summary judgment dismissing the crossclaims for contribution and/or indemnification asserted by Cherry Creek against him. Rivera,J.P., Dillon, Balkin and Austin, JJ., concur.