Delgado v. New York City Housing Authority

• Decision Date: 27 May 2008
• Docket Number: 3723.
• Citation: 51 A.D.3d 570,2008 NY Slip Op 04748,858 N.Y.S.2d 163
• Parties: JEREMY DELGADO, an Infant, by OMAR DELGADO, His Father and Natural Guardian, et al., Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

51 A.D.3d 570

858 N.Y.S.2d 163

2008 NY Slip Op 04748

JEREMY DELGADO, an Infant, by OMAR DELGADO, His Father and Natural Guardian, et al., Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.

3723.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 27, 2008.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 24, 2007, which, in an action for personal injuries sustained by the infant plaintiff in an apartment fire, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established a prima facie entitlement to summary judgment by submitting evidence including, inter alia, the investigating fire marshal's deposition testimony that the fire had been caused by a problematic extension cord that was situated in combustible material, rather than any defect in the premises' wiring system or outlet (see Butler-Francis v New York City Hous. Auth., 38 AD3d 433 [2007]; Colon v H&B Plumbing & Heating, 305 AD2d 235 [2003], lv denied 1 NY3d 506 [2004]). The evidence further shows that defendant had provided the requisite smoke detectors to and maintained them for the tenant of record, and that the fire had not spread because of the absence of a self-closing door (see Graham v New York City Hous. Auth., 42 AD3d 323 [2007], lv denied 9 NY3d 816 [2007]).

Plaintiffs' opposition failed to raise a triable issue of fact that the fire had been caused by some reason other than a compromised extension cord. The affidavits from plaintiffs' experts were not based on facts in the record or personally known to the expert witnesses (see Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 714-715 [2005]), but largely consisted of unsupported and conclusory speculation, which is insufficient to defeat summary judgment (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]; Butler-Francis, 38 AD3d at 434). Furthermore, the motion court appropriately rejected plaintiffs' theories of liability that had not been set forth in the notice of claim (see Chieffet v New York City Tr. Auth., 10 AD3d 526, 527 [2004]).

Concur — Andrias, J.P., Saxe, Sweeny, Moskowitz and DeGrasse, JJ.