Opinion
No. 2009-01483.
February 2, 2010.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered December 16, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.
Duffy Duffy, Uniondale, N.Y. (Mary Ellen Duffy and James N. LiCalzi of counsel), for appellant.
Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for respondent.
Before: Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.
Ordered that the order is affirmed, with costs.
The defendant submitted evidence sufficient to establish, prima facie, that it did not create the condition that proximately caused the plaintiff's injuries ( cf. Shindler v Warf, 66 AD3d 762). The plaintiff fell on a public roadway adjacent to the defendant's premises. She allegedly slipped and fell on a portion of a torn garbage bag and/or a banana peel protruding therefrom, that was hanging over the curb into the roadway. The plaintiff alleged that the material was caused to be in the roadway as a consequence of the manner in which the defendant stacked garbage bags on the sidewalk.
"Where the moving party has established prima facie that it is entitled to summary judgment, the party opposing the motion must demonstrate the existence of a factual issue requiring a trial of the action by admissible evidence, not mere conjecture, suspicion, or speculation" ( Leggio v Gearhart, 294 AD2d 543, 544; see Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiff failed to demonstrate the existence of a triable issue of fact ( see Xhika v Trizechahn Regional Pooling, LLC, 49 AD3d 719, 720; Grob v Kings Realty Assoc., 4 AD3d 394; Teplitskaya v 3096 Owners Corp., 289 AD2d 477, 478; Deegan v 336 E. 50th St. Tenants Corp., 216 AD2d 59). The affidavit of the plaintiff's expert in opposition to the motion was speculative and conclusory, and his opinion was not supported by empirical data or any relevant industry standard. Accordingly, the expert's affidavit was not sufficient to raise a triable issue of fact ( see Ghany v Hossain, 65 AD3d 517; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 558; Gouer v Mastic Beach Prop. Owners Assn., 57 AD3d 729, 731).
The plaintiff's remaining contention is without merit.