Santiago v. Burlington Coat Factory

• Decision Date: 19 December 2013
• Parties: Anthony SANTIAGO, Plaintiff–Appellant, v. BURLINGTON COAT FACTORY, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 514

977 N.Y.S.2d 232

2013 N.Y. Slip Op. 08506

Anthony SANTIAGO, Plaintiff–Appellant,

v.BURLINGTON COAT FACTORY, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Dec. 19, 2013.

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.

GONZALEZ, P.J., TOM, RENWICK, FREEDMAN, CLARK, JJ.

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 A.D.3d 560, 946 N.Y.S.2d 20 [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 A.D.3d 614, 969 N.Y.S.2d 13 [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 A.D.3d 55, 59, 788 N.Y.S.2d 342 [1st Dept. 2005], affd.5 N.Y.3d 574, 807 N.Y.S.2d 588, 841 N.E.2d 747 [2005] ). Since there was no evidence adduced that the 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 A.D.2d 362, 364, 450 N.Y.S.2d 10 [1st Dept. 1982] ).