Santiago v Burlington Coat Factory

Santiago v Burlington Coat Factory 2013 NY Slip Op 08506 Decided on December 19, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 19, 2013
Gonzalez, P.J., Tom, Renwick, Freedman, Clark, JJ.
11143 105483/09

[*1]Anthony Santiago, Plaintiff-Appellant,

v

Burlington Coat Factory, et al., Defendants-Respondents.




Panzavecchia & Associates PLLC, Garden City (Mark A.
Panzavecchia of counsel), for appellant.
Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of
counsel), for respondents.

Order, Supreme Court, New York County (Paul Wooten, J.), entered July 6, 2012, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action, unanimously affirmed, without costs.

Plaintiff, an HVAC serviceman, was injured when he fell from a ladder that had been provided by defendants. Defendants established their entitlement to judgment as a matter of law on the common-law negligence and Labor Law § 200 causes of action by submitting evidence showing that they had received no complaints concerning the ladder, which, according to the store manager, had rubber feet on it (see Davila v City of New York, 95 AD3d 560 [1st Dept 2012]).

Plaintiff failed to raise a triable issue of fact. Plaintiff testified that he inspected the ladder on the date of his accident, determined that it looked safe, and could not recall whether the ladder was missing its rubber feet. The affidavit of his supervisor was speculative concerning a ladder the supervisor allegedly complained about in the past (see Flynn v 835 6th Ave. Master L.P., 107 AD3d 614 [1st Dept 2013]). Moreover, the report of plaintiff's expert fails to raise a triable issue of fact. The report is unsworn and the expert's findings were based upon photographs taken some time after the accident (see Gilson v Metropolitan Opera, 15 AD3d 55, 59 [1st Dept 2005], affd 5 NY3d 574 [2005]). Since there was no evidence adduced that the [*2]ladder was in the same condition as it was on the date of the accident, the expert's findings were conclusory (see Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364 [1st Dept 1982]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 19, 2013

CLERK