Ku Sung Lee v Laybman

[*1] Ku Sung Lee v Laybman 2007 NY Slip Op 51393(U) [16 Misc 3d 1112(A)] Decided on June 14, 2007 Supreme Court, Queens County Hart, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2007
Supreme Court, Queens County

Ku Sung Lee, Plaintiff,

against

Marianna Laybman, Defendant.



16603 2004

Duane A. Hart, J.

Generally, in considering a motion for leave to reargue, the court will not permit the unsuccessful party to argue once again the "very questions previously decided." (Foley v Roche, 68 AD2d 558, 567 [1979]; Pahl Equip. v Kassis, 182 AD2d 22 [1993].) In this case, the plaintiff was granted a rare opportunity to re-address the court on certain issues of law and fact that remained unresolved in a hearing held on January 18, 2007 shortly before the matter was to be submitted to the jury. In that hearing, counsel for both parties made oral arguments to the court on the specific issue of whether a collapsing shower curtain rod could be considered a structural defect. In such case, an out-of-possession landlord could in fact be chargeable with constructive notice of the defect. Therefore, of pivotal importance to the court in reaching any further determination was whether a defective shower curtain rod was a structural defect. At that time the court, in the absence of sufficient evidence on this issue, dismissed the action but specifically stated to plaintiff's counsel that the dismissal would be set aside "if your engineer comes in and tells me to a reasonable degree of engineering certainty that it is a structural defect."

On this motion, plaintiff submits an affidavit from the expert previously named in her notice of Expert Witness Exchange, Steven F. Kane. This expert submits a terse affidavit in which he makes various vague conclusions, including statements such as "[what] would be expected of a shower curtain rod," that it "could not be safe" and that he was "unaware" of any [*2]such situation where a tenant would take a shower curtain bar with them upon vacating an apartment. This affidavit is wholly speculative and insufficient where the expert recites no factual basis for his conclusion that the shower curtain rod was a structural defect. An expert affidavit must identify specific facts in the record, relevant data, and personal knowledge, such as inspection of the premises. (Youthkins v Cascio, 298 AD2d 386 [2002]; Glorioso v Schnabel, 253 AD2d 878 [1998].) In addition, an architect's or engineer's affidavit must establish that the defect is a deviation from accepted industry standards. (Columbus v Smith & Mahoney, P.C., 259 AD2d 857 [1999].)

Insofar as plaintiff has failed to comply with the specific direction of the court to provide an adequate expert opinion, plaintiff has forfeited the opportunity to establish the very issue of law and fact of concern to the court. Accordingly, the court, upon reconsideration, adheres to its decision of January 18, 2007 and the matter is dismissed.

Those branches of plaintiff's motion for ancillary relief, including judgment in plaintiff's favor, spoilation sanctions, witness preclusion and for the recusal of this court, are denied. The cross motion of defendant for dismissal based on spoilation is denied as moot.

Dated: June 14, 2007

J.S.C.