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Ninth Avenue Freezeout: Plaintiff Cyclist Case Dismissed Due to Speculation (NY)

June 29, 2023

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In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/06/Napolitano-v.-536-Ninth-LLC.pdf">Napolitano v. 536 Ninth LLC</a>, 2023 NY Slip Op 03309 (1<sup>st</sup> Dept. 2023)</em>, plaintiff was injured when riding his bicycle on Ninth avenue in New York City, when riding over an oil hose laying on the ground in front of the building located at 536 Ninth Avenue. Plaintiff alleged defendant Four Suns Fuel Oil Co. was delivering oil to the building owned by 536 Ninth LLC. After discovery, defendant Four Sons moved for summary judgment with evidence they did not deliver oil to the building that day. The trial court agreed, and granted summary judgment. On appeal,  the appellate court upheld the decision, citing that plaintiff’s opposition was mere conjecture and speculation because he testified that he could not identify who placed the hose on the street. 536 Ninth’s property manager testified that although Four Suns was the exclusive oil delivery company for their building, the commercial tenants are responsible for their own heat/utilities in their basements, which suggests that they have their own companies delivering oil.

This case highlights an important aspect of summary judgment proceedings. If a business owner provides conclusive records in support of its motion, plaintiff’s opposition will be considered merely speculative unless they offer admissible evidence sufficient to overcome defendant’s evidence.

Thanks to Ray Gonzalez for his assistance with this post.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.

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