Nathan v Rochester Hous. Auth.

2009 NY Slip Op 09940 [68 AD3d 1820]

December 30, 2009

Appellate Division, Fourth Department

As corrected through Wednesday, February 10, 2010

Dareya Nathan, an Infant, By Her Parents and Natural Guardians,Daryl Nathan and Another, et al., Appellants, v Rochester Housing Authority,Respondent.

—[*1]Edwin Robert Schulman, Rochester, for plaintiffs-appellants.

Ernest D. Santoro, Esq., P.C., Rochester (Ernest D. Santoro of counsel), fordefendant-respondent.

Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.),entered February 6, 2009 in a personal injury action. The order denied the motion of plaintiffsfor partial summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byplaintiff daughter when she fell through the balusters of a railing in a building owned bydefendant. Contrary to the contention of plaintiffs, Supreme Court properly denied their motionfor partial summary judgment on the issue of liability. "Plaintiff[s'] expert[s] cited no authority,treatise, standard, building code, article or other corroborating evidence to support [their]assertion that good and accepted engineering and building safety practices called for theinstallation" of balusters with narrower gaps than those in the building in question (Buchholz v Trump 767 Fifth Ave.,LLC, 5 NY3d 1, 8-9 [2005]). "The opinion of a qualified expert that a plaintiff's injurieswere caused by a deviation from relevant industry standards has no probative force where theexpert's ultimate assertions are speculative or unsupported by any evidentiary foundation" (Wong v Goldbaum, 23 AD3d 277,279 [2005]; see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).Plaintiffs thus failed to meet their initial burden on the motion, and we need not consider thesufficiency of defendant's opposing papers (see generally Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Present—Smith, J.P., Fahey, Carni and Green, JJ.