| Jeansimon v Lumsden |
| 2012 NY Slip Op 00931 [92 AD3d 640] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Vinston Jeansimon, an Infant, by His Mother and Natural Guardian,Monesha Davis, Respondent, v David E. Lumsden et al.,Appellants. |
—[*1] Harris Law, New York, N.Y. (Matthew Gaisi of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Martin, J.), dated February 18, 2011, which denied themotion of the defendant David E. Lumsden for summary judgment dismissing the complaintinsofar as asserted against him.
Ordered that the appeal by the defendant Estella A. Lumsden is dismissed as abandoned(see 22 NYCRR 670.8 [c]), and on the additional ground that she is not aggrieved by theorder appealed from (see CPLR 5511); and it is further,
Ordered that the order is reversed on the appeal by the defendant David E. Lumsden, on thelaw, and the motion of the defendant David E. Lumsden for summary judgment dismissing thecomplaint insofar as asserted against him is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant David E. Lumsden.
On August 13, 2009, the then 14-year old plaintiff, Vinston Jeansimon (hereinafter theplaintiff), allegedly was injured when, while playing tag with his friends, he slipped and fell on aslick substance on the public roadway on Barbey Street in Brooklyn. The plaintiff alleged that heslipped and fell on a fresh spot of oil that came from a motor vehicle owned by the defendantDavid E. Lumsden (hereinafter the appellant).
The Supreme Court erred in denying the appellant's motion for summary judgmentdismissing the complaint insofar as asserted against him. After the appellant established hisprima facie entitlement to judgment as a matter of law, the plaintiff, in opposition, failed to raisea triable issue of fact. While a defendant may be liable for an affirmative act of negligence whichresults in the creation of a dangerous condition upon a public street or sidewalk (see Lau v City of New York, 22 AD3d529 [2005]; Smelley v Ahmed,3 AD3d 559, 560 [2004]; Skolnik v City of New York, 296 AD2d 454, 455 [2002]),under the circumstances of this case, it would be mere speculation to conclude that the allegedlydangerous condition which caused the plaintiff to slip and fall was created by any affirmative actof negligence by the appellant. "Speculation and surmise are insufficient to defeat [*2]a motion for summary judgment" (Skouras v New York City Tr. Auth., 48AD3d 547, 548 [2008]; see Cusackv Peter Luger, Inc., 77 AD3d 785, 786 [2010]; Cohen v Schachter, 51 AD3d 847 [2008]; Frazier v City of New York, 47 AD3d757 [2008]; Smelley v Ahmed, 3 AD3d at 560; Portanova v Dynasty MeatCorp., 297 AD2d 792 [2002]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Roman, Sgroi andCohen, JJ., concur.