Opinion
No. CA 09-01400.
December 30, 2009.
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.
EDWIN ROBERT SCHULMAN, ROCHESTER, FOR PLAINTIFFS-APPELLANTS.
ERNEST D. SANTORO, ESQ., P.C., ROCHESTER (ERNEST D. SANTORO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Present: Smith, J.P., Fahey, Carni and Green, JJ.
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). "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; see Diaz v New York Downtown Hosp., 99 NY2d 542, 544). 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; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).