Nathan v Rochester Hous. Auth.

Nathan v Rochester Hous. Auth. 2009 NY Slip Op 09940 [68 AD3d 1820] December 30, 2009 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Dareya Nathan, an Infant, By Her Parents and Natural Guardians, Daryl Nathan and Another, et al., Appellants, v Rochester Housing Authority, Respondent.

—[*1] Edwin Robert Schulman, Rochester, for plaintiffs-appellants.

Ernest D. Santoro, Esq., P.C., Rochester (Ernest D. Santoro of counsel), for defendant-respondent.

Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered February 6, 2009 in a personal injury action. The order denied the motion of plaintiffs for partial summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff daughter when she fell through the balusters of a railing in a building owned by defendant. Contrary to the contention of plaintiffs, Supreme Court properly denied their motion for partial summary judgment on the issue of liability. "Plaintiff[s'] expert[s] cited no authority, treatise, standard, building code, article or other corroborating evidence to support [their] assertion that good and accepted engineering and building safety practices called for the installation" of balusters with narrower gaps than those in the building in question (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005]). "The opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards has no probative force where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation" (Wong v Goldbaum, 23 AD3d 277, 279 [2005]; see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Plaintiffs thus failed to meet their initial burden on the motion, and we need not consider the sufficiency of defendant's opposing papers (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Smith, J.P., Fahey, Carni and Green, JJ.