Scott v Linden Plaza Hous. Co., Inc.

[*1] Scott v Linden Plaza Hous. Co., Inc. 2004 NY Slip Op 51111(U) Decided on October 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
x

CLARA SCOTT, Appellant,

against

LINDEN PLAZA HOUSING CO., INC., Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Waltrous, J.), entered July 8, 2003, which granted defendant's motion for summary judgment.

Order unanimously affirmed with $10 costs.

Plaintiff commenced this action to recover damages for injuries she sustained when the front door of her apartment slammed shut on one of her fingers. After issue was joined, plaintiff testified at her deposition that she did not know why the door slammed shut, that the door to her terrace was open and the wind was not heavy at the time of the accident, and that, prior thereto, she never complained to defendant about her door slamming shut.

Defendant established its prima facie entitlement to summary judgment by submitting, among other things, said deposition testimony by plaintiff and the testimony of the building's superintendent which indicated a lack of liability. As a result, it was incumbent upon plaintiff to produce proof in admissible form which demonstrated the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff's submissions failed to do so. Her affidavit was insufficient because "it presented a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony" (Lincoln v Laro Serv. Sys., 1 AD3d 487, 487 [2003]; see also Broich v Nabisco, Inc., 2 AD3d 474, 475 [2003]; Taveras v Catalano, 307 AD2d 310, 311 [2003]; Krohn v Melanson, 298 AD2d 510 [2002]). Similarly, the affidavit by plaintiff's expert was of no probative value because it consisted of "[s]peculation, grounded in theory rather than fact," which is "insufficient to defeat a motion for summary judgment" (Leggio v Gearhart, 294 AD2d 543, 545 [2002]; see also Romano v Stanley, 90 NY2d 444, 451 [1997]; Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-534, n 2 [1991]; Maldonado v Su Jong Lee, 278 AD2d 206, 207 [2000]; Kaluga v Korytowsky, 269 AD2d 566 [2000]). Consequently, the court properly granted defendant's [*2]motion for summary judgment.
Decision Date: October 01, 2004