Speculation Doesn't Create an Issue of Fact (NY)
In Acadia Constr. Corp. v ZHN Contr. Corp. a fire broke out in the plaintiff’s construction and millwork business building. The plaintiff contended that sparks from welding on the roof of the defendants’ neighboring building traveled to the roof of plaintiff’s building and down a ventilation shaft, causing the fire. The plaintiff did not see this occur, but he had smelled and heard welding on the day of the fire.
The plaintiff sued the owner and tenant of the neighboring building for damage caused by the defendants’ negligence. Defendants’ admitted that the construction to their building required some welding on the roof but they both denied that any welding was being done on the roof on the day of the fire. As such, the defendants moved for summary judgment, which was denied by the Kings County Supreme Court, finding there were issues of fact.
But on appeal, the Appellate Division reversed, finding that the defendants established their prima facie entitlement to judgment by submitting evidence that they committed no act that a rational jury could infer negligently caused the fire. The Appellate Division concluded that the plaintiff’s claim that sparks from welding on the roof of the defendants’ building caused the fire was speculative because the plaintiff did not actually see any welding being done that day, and there was no basis for the opinion that the welding that he smelled and heard was being done on the defendants’ roof rather than inside a building or on the roof of a different neighboring building.
Plaintiff’s expert affidavit did not create an issue of fact as it was speculative, conclusory, and without any factual basis. Photographs submitted in opposition to the motions were also insufficient as they were taken after the fire and did not depict any welding.
Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.