Plaintiffs and co-defendants often submit expert opinions in an effort to create issues of fact to defeat summary judgment motions.  However, if the expert opinion is not based on concrete evidence, it may be rejected.

In Taylor v. Park Ave. & 84^th St. Inc., plaintiff sued for property damage as a result of leaks in a cooperative apartment following renovations.  The renovations included the removal and replacement of a greenhouse on the roof terrace and placement of a stone terrace.  After renovations were completed, planters were placed on top of pavers on the terrace with an irrigation system.  Approximately six months later, plaintiff discovered a leak.

One of the defendant subcontractors moved for summary judgment prior to its deposition, alleging that all its work was on an exterior wall of the penthouse on the opposite side of the terrace from where the leak was found.  The general contractor’s testimony confirmed that the subcontractor did not perform any work at the leak location, and additional testimony that plaintiff’s boyfriend installed the irrigation system by “lifting the pavers and cutting the roof membrane” further supported the subcontractor’s position that it could not have caused the leak.

In opposition, the building contractor offered an affidavit of a roofing consultant that opined that the leak could have been caused by “the stucco work performed on the penthouse wall adjoining the roof terrace.”  However, the court rejected the opinion since the expert offered no foundation for the opinion.  The court granted the subcontractor’s motion for summary judgment since despite the opposition, there were no issues of fact (as opposed to speculative opinion) as to the lack of the subcontractor’s liability.

Parties should remember that the mere existence of an expert affidavit may not defeat a summary judgment motion.

Thanks to Valeria Prizimenter for her contribution to this post.