Bygrave v New York City Hous. Auth., 2009 NY Slip Op 06361 (App. Div., 1st, 2009)
This decision is too long to pull a cut and paste job. Long story short, defendant moved for summary judgment based on the affidavit of its expert. The expert referred to a few reports, but not all of them were attached; however this did not bother the Court. The Court rejected the testimony of the expert because it was not based upon "an individualized assessment of plaintiff's particular condition." Click on the case to read more. It's a lead paint case.
Before you go, take note:
Because defendant failed to meet its initial burden of establishing entitlement to judgment in its favor as a matter of law, the motion court should have denied the motion for summary [*5]judgment without even considering the sufficiency of plaintiff's opposition papers (see Winegrad, 64 NY2d at 853).
Expert testimony, even if unrebutted will not always carry the day. Although, to be clear, the Court did find that had defendant met its burden, plaintiff opposition was sufficient to raise an issue of fact.
Lately the First Department has had a dissent in almost every decision. This one was no exception.
