| Fallon v Duffy |
| 2012 NY Slip Op 03501 [95 AD3d 1416] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—Tracy Fallon et al., Appellants, v Thomas Duffy et al.,Respondents. |
—[*1] Santacrose & Frary, Albany (Patrick D. Slade of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Work, J.), entered July 6, 2011 inUlster County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff Tracy Fallon (hereinafter plaintiff) and her husband, derivatively, commenced thisaction to recover damages for personal injuries sustained by plaintiff when she slipped and fellwhile exiting defendants' residence after attending a party there. Just prior to her exiting, it hadbegun to rain and plaintiff—who was wearing "demi boots" with three-inch stilettoheels—alleged that the surface of the landing was very slippery. Following joinder of issueand discovery, defendants moved for summary judgment dismissing the complaint. SupremeCourt granted the motion and plaintiffs now appeal.
We affirm. Defendants, as the proponents of the motion for summary judgment, met theirinitial burden of demonstrating through the parties' deposition testimony that defendantsmaintained their property in a reasonably safe condition and neither created nor had actual orconstructive notice of a dangerous condition that caused plaintiff's fall (see Maurer v John A. Coleman CatholicHigh School, 91 AD3d 1168, 1168 [2012]). Defendant Thomas Duffy testified that hebuilt the landing, using exterior grade material that had a grainy or gritty nonslip surface. Bothdefendants testified that they had not noticed any wearing on the surface of the landing and thatno one had ever slipped or fallen in the area where plaintiff fell or complained that it was slipperyor otherwise unsafe. Even plaintiffs testified that they had visited defendants' residence on anumber of occasions, they had no trouble entering the home when they arrived for [*2]the party and they had never noticed anything unusual about theentrance area. Plaintiffs also testified that they had not notified defendants of any dangerouscondition in the area where plaintiff fell. Inasmuch as the cumulative testimony indicated thatdefendants maintained the area in a reasonably safe condition, they had no notice that it wasunsafe and plaintiff slipped on a surface that was wet due to the then-falling rain, the burdenshifted to plaintiffs to establish a question of fact to warrant a trial (see Fontanelli v Price Chopper OperatingCo., Inc., 89 AD3d 1176, 1177 [2011]; Zibro v Saratoga Natl. Golf Club, Inc., 55 AD3d 998, 999-1000[2008]).
In opposition to defendants' motion, plaintiffs relied primarily on an affidavit, as well as anunsworn expert property inspection report, of Paul Economos that was based upon hisexamination of the accident site nearly two years after the accident. Notably, Supreme Courtproperly found that Economos' report did not constitute admissible evidence, as it was notaffirmed or sworn to and no specific reference was made thereto in his affidavit (see Moon v Cortland Mem. Hosp., 27AD3d 870, 871 [2006]; Anderson v Persell, 272 AD2d 733, 734 [2000]). Thus,absent an explanation for the failure to submit such report in admissible form, it should not beconsidered (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In any event, even viewing the evidence in the light most favorable to plaintiffs andaccepting plaintiffs' factual allegations as true (see Fontanelli v Price Chopper Operating Co.,Inc., 89 AD3d at 1177), Economos' report and affidavit are insufficient to defeat defendants'motion for summary judgment. The expert's speculative conclusions as to the cause of theaccident simply have no evidentiary basis in the record. Moreover, Economos did not examinethe area until two years after plaintiff's fall, and no evidence was provided to connect itscondition at the time of the inspection with its condition at the time of the accident (see Gonzalez v State of New York, 60AD3d 1193, 1194 [2009], lv denied 13 NY3d 712 [2009]). Nor did Economosconnect the conditions he observed to plaintiff's fall (see Gomez v David Minkin Residence Hous. Dev. Fund Co., Inc., 85AD3d 1112, 1113 [2011]). Inasmuch as "a cause of action for negligence cannot bemaintained against a building owner solely on the basis of an inherently slippery floor" (Cietek v Bountiful Bread of StuyvesantPlaza, Inc., 74 AD3d 1628, 1629 [2010]; see Sarmiento v C & E Assoc., 40 AD3d 524, 527 [2007]; Pechtel v Gould, 9 AD3d 653, 654[2004]), plaintiffs have failed to raise a triable issue of fact to defeat defendants' motion forsummary judgment (see Maurer v John A. Coleman Catholic High School, 91 AD3d at1169; Fontanelli v Price Chopper Operating Co., Inc., 89 AD3d at 1177-1178; Gomezv David Minkin Residence Hous. Dev. Fund Co., Inc., 85 AD3d at 1113).
We have examined plaintiffs' remaining contentions and find them to be without merit.
Mercure, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.