22-2911-cv

Shin v. Wu

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 16th day of October, two thousand twenty-three.

PRESENT: John M. Walker, Jr.

Steven J. Menashi,

Eunice C. Lee,

Circuit Judges.

____________________________________________

EDWARD SHIN,

Plaintiff-Appellant,

v. No. 22-2911

TERRANCE WU,

Defendant-Appellee,

VICTORIA WANG, AS TRUSTEE OF THE 

RICHARDSON IRREVOCABLE TRUST,
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Defendant-Trustee-Cross-DefendantAppellee,

RICHARDSON IRREVOCABLE TRUST,

Defendant-Third-Party-DefendantAppellee,

DEH-JUNG DEBORAH WANG,

Defendant-Third-Party-Defendant-CrossDefendant-Appellee,

YS2 ENTERPRISES INC., YOUNG K. LEE, MICHEL 

S. WANG,

Defendant-Third-Party-Plaintiff-Cross-Defendant-Cross-ClaimantAppellee.*

____________________________________________

For Plaintiff-Appellant: ROBERT J. BASIL, Basil Law Group, 

P.C., New York, NY.

For Defendants-Appellees Terrance Wu,

Victoria Wang, Richardson Irrevocable Trust, 

Deh-Jung Deborah Wang, and Michel S. 

Wang:

CARMEN NICOLAU, Chartwell Law 

Offices, LLP, White Plains, NY.

Appeal from a judgment of the United States District Court for the Eastern 

District of New York (Gold, M.J.).

* The Clerk of Court is directed to amend the caption as set forth above. 
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Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the orders of the district court of December 16, 2020, and October 

20, 2022, are AFFIRMED.

Plaintiff-Appellant Edward Shin appeals the district court’s judgment 

entered on October 20, 2022. This appeal requires us to review the district court’s 

ruling of December 16, 2020, granting summary judgment to the defendants on 

Shin’s negligence claim for injuries he suffered in the defendants’ building after he 

was kicked down the stairs. We review a grant of summary judgment “de novo, 

resolving all ambiguities and drawing all permissible inferences in favor of the 

nonmoving party.” Tiffany & Co. v. Costco Wholesale Corp., 971 F.3d 74, 83 (2d Cir. 

2020). We assume the parties’ familiarity with the underlying facts, the procedural 

history, and the issues on appeal.

I

Shin argues that the district court treated the expert testimony of Dr. 

William Marletta improperly. Appellant’s Br. 12-18. We disagree. “An expert ... is 

not entitled to a conclusion that his view of the facts necessarily precludes 

summary judgment.” Dalberth v. Xerox Corp., 766 F.3d 172, 189 (2d Cir. 2014). When 

the nonmovant produces an expert report at the summary judgment stage, “if the 

admissible evidence is insufficient to permit a rational juror to find in favor of the 

plaintiff, the court remains free to ... grant summary judgment for [the]

defendant.” In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 512 (2d Cir. 2010) 

(quoting Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002)).

Summary judgment may be “appropriate,” for example, “because [the expert’s] 

testimony does not suffice to draw the requisite causal connection.” Id. “An 

expert’s conclusory opinions” or “[a]n expert’s opinions that are without factual 

basis and are based on speculation or conjecture” are also “inappropriate material 

for consideration on a motion for summary judgment.” Major League Baseball 

Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008).
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In this case, the district court did not exclude Dr. Marletta’s expert 

testimony. Rather, the district court considered Dr. Marletta’s testimony and 

concluded that it did not create genuine issues of material fact sufficient to avoid 

summary judgment. See Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986). Of the 

six key conclusions of Dr. Marletta that Shin identifies on appeal, the district court 

either did not dispute or expressly adopted all but one. See S. App’x 6-7, 13 n.9, 17-

18. The district court rejected only the conclusion that the alleged deficiencies in 

the building were “very likely contributing factors to this accident.” App’x 752; see 

S. App’x 21-22 n.10. The district court was not required to accept that conclusory 

opinion, which was based on conjecture, especially when the district court had 

additional video evidence of the accident before it. A court may rely on a 

“videotape [that] quite clearly contradicts” a party’s “version of the story.” Scott v. 

Harris, 550 U.S. 372, 378 (2007). When “no reasonable jury could believe” that 

version, “a court should not adopt that version of the facts for purposes of ruling 

on a motion for summary judgment.” Id. at 380. 

II

The district court also correctly granted summary judgment on both breach 

of duty and proximate cause. To show a breach of duty, “the plaintiff must 

demonstrate ‘that the defendant either created the defective condition, or had 

actual or constructive notice thereof.’” Tenay v. Culinary Tchrs. Ass’n of Hyde Park, 

281 F. App’x 11, 13 (2d Cir. 2008) (alteration omitted) (quoting Baez v. Jovin III, LLC, 

41 N.Y.S.2d 201, 202 (2d Dep’t 2007)). The New York Court of Appeals has held 

that a defendant is liable for creating a dangerous condition when the defendant 

took an “affirmative act in creating the condition.” Cook v. Rezende, 32 N.Y.2d 596, 

599 (1973). A breach based on notice requires that the defendant “have notice of 

the [dangerous] condition itself as well as [of] the unreasonable risk it creates.” 

Herman v. State, 63 N.Y.2d 822, 823 (1984).

None of the building’s purportedly dangerous conditions breached the duty 

of care that the building-owner defendants owed to Shin. While the defendants 
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were on notice that the elevator was broken, App’x 605, 760-81; S. App’x 8, Shin 

failed to allege facts that the defendants were on notice that the broken elevator 

was an “unreasonable risk.” Herman, 63 N.Y.2d at 823. Similarly, the allegations 

did not create a genuine issue of material fact over whether the defendants had 

constructive notice that the level of illumination or the landing’s width created an 

unreasonable risk. Although Dr. Marletta testified that the illumination levels in 

the landing were inconsistent with the applicable building code, he also stated that 

the landing’s width was not in violation of any code. See App’x 746, 961. 

Regardless, courts applying New York law have “declined to impute constructive 

notice to defendants where the allegedly defective conditions deviate from 

accepted practices by relatively small dimensions that could only be detected 

through structural analysis.” Batista v. Metro. Transp. Auth., No. 20-CV-1254, 2021 

WL 2894351, at *8 (S.D.N.Y. July 9, 2021) (quoting Deykina v. Chattin, No. 12-CV2678, 2014 WL 4628692, at *8 (E.D.N.Y. Sept. 15, 2014)), aff’d, 2022 WL 2442312 (2d 

Cir. July 5, 2022); see also McHale v. Westcott, 893 F. Supp. 143, 149 (N.D.N.Y. 1995) 

(granting summary judgment because “the only way defendants could have 

discovered the defect was by undertaking a structural analysis” and “plaintiffs did 

not allege any fact or occurrence that would have alerted defendants to the need 

for such analysis”). 

Additionally, Shin’s argument that the defendants “created the lack of 

crowd control conditions, as they neither provided any crowd control nor required 

their liquor-mongering tenants to do so,” Appellant’s Br. 25, is unavailing. Shin 

has not alleged facts showing that the defendants engaged in “an affirmative act 

in creating the condition.” Cook, 32 N.Y.2d at 599.

The district court also correctly granted summary judgment on the issue of 

proximate cause. “A defendant’s negligence qualifies as a proximate cause where 

it is a substantial cause of the events which produced the injury.” Turturro v. City 

of New York, 28 N.Y.3d 469, 483 (2016) (internal quotation marks omitted) (quoting 

Mazella v. Beals, 27 N.Y.3d 694, 706 (2016)). Shin fell because he was kicked. See 

Exhibit G at 2:12-2:16; S. App’x 20; App’x 966-67. The non-working elevator was 
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not a proximate cause of Shin’s fall, because “as a matter of [New York state] law

... failure to have the elevator in operation [i]s not a proximate cause” of a fall 

down a staircase. Bank v. Lincoln Shore Owners, Inc., 229 A.D.2d 370, 370 (2d Dep’t 

1996); see also Grossman v. Target Corp., 84 A.D.3d 1164, 1165 (2d Dep’t 2011) 

(holding that “any conduct or omission ... which caused the elevators to be out of 

service at the time of the accident was not a proximate cause of the plaintiff’s 

injuries” from falling down an escalator). Nor was the allegedly inadequate 

lighting a proximate cause of Shin’s fall. The video evidence indicates that Shin 

would not have avoided his injury regardless of the lighting of the staircase, a 

point even Dr. Marletta conceded. Exhibit G at 2:12-2:16; App’x 963-68. 

We also agree with the district court that the purportedly too-small landing 

was not a cause of the injury. Shin had plenty of room to step away from the stairs, 

or to place both feet on the landing, if he had so chosen. The landing’s size did not 

force him to stand where or how he did. Finally, Shin has failed to create a genuine 

issue of material fact that the kick down the stairs was a reasonably foreseeable

result of the lack of crowd control, so as to demonstrate proximate cause. See 

Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980).

* * *

We have considered Shin’s remaining arguments, which we conclude are 

without merit. For the foregoing reasons, we AFFIRM the judgment of the district 

court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court