Di Sanza v City of New York
2008 NY Slip Op 06747 [11 NY3d 766]
September 11, 2008
Court of Appeals
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 12, 2008

Filip Di Sanza, Appellant,
City of New York et al., Defendants, and Consolidated Edison Company of New York, Respondent.

Decided September 11, 2008

Di Sanza v City of New York, 47 AD3d 535, affirmed.


Susan R. Nudelman, Dix Hills, for appellant.

Richard W. Babinecz, New York City, and Helman R. Brook for respondent.

{**11 NY3d at 767} OPINION OF THE COURT


The order of the Appellate Division should be affirmed with costs. We agree with the majority at the Appellate Division that, under the particular circumstances of this case, defendant Consolidated Edison Company of New York's evidentiary submissions were sufficient to establish its prima facie entitlement to judgment as a matter of law on the ground that it neither [*2]created nor had actual or constructive notice of the one-inch bulge in the sidewalk grating. We further conclude that plaintiff's introduction of the postaccident photographs, which were not probative of the duration of the bulge, and the conclusory affidavit from his expert were insufficient to raise a triable issue of fact (see Batton v Elghanayan, 43 NY2d 898, 900 [1978] [photographs are not always sufficient to prove constructive notice]; see also Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Romano v Stanley, 90 NY2d 444, 451-452 [1997] [conclusory expert affidavit, devoid of evidentiary foundation, insufficient to defeat summary judgment]).

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.