Opinion
Submitted September 15, 1999
October 25, 1999
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Rockland County (Sherwood, J.).
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that the respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248 ). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1]).
While attempting to move a bulkhead in a railroad boxcar owned by the defendant, Burlington Northern-Santa Fe Company, the plaintiff Tommy Van Skyock (hereinafter Van Skyock) allegedly sustained injuries when a piece of metal from a strut in the boxcar fell and struck him in the head. The plaintiffs commenced the instant action against the defendant, claiming that it was negligent in the ownership, maintenance, etc., of the railroad boxcar. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. We affirm.
Although the defendant had a duty "to exercise ordinary care to provide a reasonably safe car", it "is liable only for such defects as might have been discovered by reasonable care in inspection" (Bierzynski v. New York Cent. R. R. Co., 31 A.D.2d 294, 297, affd 29 N.Y.2d 804 ). The plaintiffs were also required to establish that the defendant either created or had actual or constructive notice of the allegedly dangerous condition which caused the injuries (see, Freeman v. Cobos, 240 A.D.2d 698 ;Karakostas v. Plainview Ave. Assocs., 251 A.D.2d 549 ; Nivens v. New York City Hous. Auth., 246 A.D.2d 520 ). On its motion for summary judgment, the defendant demonstrated a prima facie case that it did not create or have notice of the allegedly dangerous condition (see, Gianchetta v. E.B. Marine, Inc., 258 A.D.2d 618 [2d Dept., Feb. 22, 1999]; Wheeler v. Princess Assocs., 259 A.D.2d 611 [2d Dept., Mar. 15, 1999]).
The plaintiffs' evidence in opposition to the defendant's motion failed to raise a triable issue of fact on this issue. The conclusion of the plaintiffs' expert that the subject boxcar was in the same condition on the date that he inspected it as it was on the date that Van Skyock was injured was based upon speculation (see, Romano v. Stanley, 90 N.Y.2d 444, 451 ; Chambers v. Roosevelt Union Free School Dist., 260 A.D.2d 594 [2d Dept., Apr. 26, 1999]). Moreover, the plaintiffs' expert did not state the nature of his qualifications, nor did he identify authoritative material "'of a kind accepted in the profession as reliable in forming a professional opinion'" that supported his view (Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726 , quoting People v. Sugden, 35 N.Y.2d 452 [ 35 N.Y.2d 453], 460-461; see, Bova v. City of Saratoga, 258 A.D.2d 748 [3d Dept., Feb. 11, 1999]).
The plaintiffs' remaining contentions are without merit.
MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.