In Kalish v. HEI Hospitality, LLC, plaintiff’s complaint was dismissed as defendants made a prima facie showing that plaintiff’s accident was not attributable to any defect. Plaintiff was injured when he slipped and fell on the bath mat provided by the hotel in his room’s bathroom. He claimed that the hotel failed to provide non-skid backing to its bath mat which created a dangerous condition. In support of his claim, plaintiff submitted an expert affidavit that stated that the bath mat was merely a cotton towel and was therefore defective. The expert cited the industry standard, which he claimed requires mats to be fixed in place or provide slip resistant backing.
The trial court granted the hotel’s motion for summary judgment dismissing plaintiff’s claims and the plaintiff appealed. The First Department affirmed, holding that plaintiff’s expert’s affidavit was purely speculative, pointing out that the expert never actually examined the floor or the bath mat in question. Plaintiff’s expert relied on a photograph and did not make any references to his methodology to determine that the mat was defective. Further, the industry standard cited was not even applicable to bathrooms. The court held that there was no evidence of a defect in the bath mat and the complaint was properly dismissed.
Although on the surface an expert’s affidavit may appear to create a question of fact, it is always worth examining further how they actually arrived at their conclusions and pointing out the lack of objective support for their opinions.