| Latuso v Maresca |
| 2017 NY Slip Op 03499 |
| Decided on May 3, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 3, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2015-09951
(Index No. 44317/08)
v
Salvatore D. Maresca, Jr., et al., appellants, et al., defendants.
DeSena & Sweeney, LLP, Bohemia, NY (Shawn P. O'Shaughnessy of counsel), for appellants.
James Greenberg & Associates, P.C., New York, NY, for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Salvatore D. Maresca, Jr., and Mary Maresca appeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated September 4, 2015, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Salvatore D. Maresca, Jr., and Mary Maresca for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.
At approximately 3:00 a.m. on February 11, 2008, the plaintiff, while operating his motorcycle on Mt. Sinai Coram Road in the Town of Brookhaven, allegedly was injured when he swerved to avoid a garbage pail that had blown onto the road, came into contact with sand on the roadway, lost control of the motorcycle, and struck a tree located on the lawn of the defendants Salvatore D. Maresca, Jr., and Mary Maresca (hereinafter together the defendants). The plaintiff theorized that the wind must have knocked over the defendants' garbage pail, which was left near the roadway. In 2009, the plaintiff commenced this action against the defendants and others alleging, inter alia, that the defendants were negligent in placing their garbage can on a berm near the roadway when it was windy. After discovery, the defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied the motion.
In support of their motion, the defendants submitted evidence sufficient to establish, prima facie, that they did not create the conditions that proximately caused the plaintiff's injuries (see Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 631-632) and that they had neither actual nor constructive notice of any hazardous condition (see Gordon v American Museum of Natural History, 67 NY2d 836). In opposition, the plaintiff failed to raise a triable issue of fact. Mere conjecture, suspicion, or speculation is insufficient to defeat a motion for summary judgment (see Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d at 632).
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
DILLON, J.P., ROMAN, COHEN and MILLER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court