Wass v County of Nassau |
2018 NY Slip Op 08172 [166 AD3d 1052] |
November 28, 2018 |
Appellate Division, Second Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Robert Wass et al., Appellants, v County of Nassau et al., Respondents, et al., Defendants. |
Dell & Dean, PLLC, Garden City, NY (Jay J. Massaro and Michael Schultz of counsel), for appellants.
Perez & Cariello, Uniondale, NY (Edgar Matos of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), dated March 8, 2016. The order, insofar as appealed from, granted that branch of the motion of the defendants County of Nassau, New York Islanders Hockey Club, L.P., and Nassau County Department of Public Works which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants County of Nassau, New York Islanders Hockey Club, L.P., and Nassau County Department of Public Works which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them is denied.
The plaintiff Robert Wass (hereinafter the injured plaintiff) allegedly was injured when he received an electrical shock during the course of replacing a burnt-out 1,000-watt metal halide light bulb on a catwalk suspended above the ice rink at Nassau Coliseum. The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, the defendants County of Nassau, New York Islanders Hockey Club, L.P., and Nassau County Department of Public Works (hereinafter collectively the defendants), alleging, inter alia, common-law negligence and a violation of Labor Law § 200.
Following discovery, the defendants moved for summary judgment, inter alia, dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them on the ground, among others, that the light fixture was not in a dangerous or defective condition. In support of their motion, the defendants relied principally upon the expert affidavit of a certified Fire Investigator. The Supreme Court granted the defendants' motion, and the plaintiffs appeal.
The defendants failed to establish their prima facie entitlement to judgment as a
matter of law dismissing the causes of action alleging common-law negligence and a
violation of Labor Law § 200 insofar as asserted against them. The affidavit
of the defendants' expert was [*2]speculative, conclusory,
and lacked a proper foundation. Specifically, the expert tested the light fixture
approximately 2
Since the defendants failed to meet their initial burden, the Supreme Court should have denied that branch of their motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against them, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Balkin, J.P., Sgroi, LaSalle and Barros, JJ., concur.
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