| Arredondo v Valente |
| 2012 NY Slip Op 02821 [94 AD3d 920] |
| April 17, 2012 |
| Appellate Division, Second Department |
| David Arredondo, Respondent, v Robert Valente et al,Appellants. |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Andrew Wiese of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Strauss, J.), dated April 12, 2011, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff was hired to perform auto body repair work on a vehicle owned by thedefendant Robert Valente. On October 16, 2007, while in the garage of the defendants' home, theplaintiff was operating an acetylene torch on the trunk of the vehicle when his shirt allegedlycaught fire, resulting in injuries. The plaintiff commenced this action alleging causes of action torecover damages for common-law negligence and violations of Labor Law §§ 200and 241 (6). Specifically, the plaintiff alleged, inter alia, that the defendants had constructivenotice that the acetylene torch which they provided to him was defective and that this defect wasthe proximate cause of his injuries. In the order appealed from, the Supreme Court denied thedefendants' motion for summary judgment dismissing the complaint. We reverse.
In cases alleging an injury caused by a defective condition, the plaintiff must show that thelandowner either created the defective condition, or had actual or constructive notice of thedefect (see Dougherty v O'Connor,85 AD3d 1090 [2011]; Santiago vC&S Wholesale Grocers Inc., 83 AD3d 814 [2011]; Levinstim v Parker, 27 AD3d 698 [2006]). Moreover, "when adefendant property owner lends allegedly dangerous or defective equipment to a worker thatcauses injury during its use, the defendant moving for summary judgment must establish that itneither created the alleged danger or defect in the instrumentality nor had actual or constructivenotice of the dangerous or defective condition" (Chowdhury v Rodriguez, 57 AD3d 121, 131-132 [2008]).
In support of their motion, the defendants submitted, among other things, the plaintiff'sdeposition testimony. The plaintiff testified that prior to the accident, he was holding theacetylene torch in one hand and was bending over to reach inside the trunk of the car when hisshirt [*2]caught fire. The plaintiff further testified that the torchwas working properly prior to the accident and that the defendants did not instruct him as to howto perform the work. The defendants established that they did not have constructive notice of theallegedly defective condition of the torch prior to the accident in question. Thus, the defendantsestablished their entitlement to judgment as a matter of law dismissing the causes of action torecover damages for common-law negligence and a violation of Labor Law § 200. Inaddition, the defendants established their entitlement to judgment as a matter of law dismissingthe cause of action alleging a violation of Labor Law § 241 (6).
In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triableissue of fact. The plaintiff submitted the affidavit of an expert who visited the garage long afterthe accident. The plaintiff's expert alleged that a lack of adequate ventilation in the garage causedthe accumulation of gas which, in turn, could have been ignited by a spark. However, there is noadmissible evidence in the record describing the ventilation conditions in the garage at the timeof the accident, nor was there any evidence that an ignition of accumulated gas had actuallyoccurred. Therefore, the opinion of the plaintiff's expert was speculative and conclusory, and didnot constitute proof in admissible form sufficient to raise a triable issue of fact in opposition tothe defendants' motion (see Pellechia vPartner Aviation Enters., Inc., 80 AD3d 740, 741 [2011]; Gargiulo v Geiss, 40 AD3d 811[2007]).
Accordingly, the defendants' motion for summary judgment dismissing the complaint shouldhave been granted. Balkin, J.P., Leventhal, Roman and Sgroi, JJ., concur.