The opinion
Smith, J. (dissenting).
I dissent because I see no basis on which a finder of fact could rationally conclude, by a preponderance of the evidence, that an employee of General Fence Corporation (GFC) put the concrete in the trash can.
The affidavit of GFC’s principal owner, while not claiming a specific recollection of the events, flatly denied that GFC was the guilty party. Johnson testified that he did not remember *508 whether GFC did any concrete removal at this site; that it was GFC’s “custom and practice ... to physically remove any and all debris that it creates from the work site”; and that “[i]n no event would [GFC] have disposed of concrete or concrete debris in one of the refuse containers intended for the public’s usage.”
I am mystified by the majority’s conclusion that this was insufficient to meet GFC’s burden on summary judgment. What else was Johnson supposed to say? The majority faults him for his “failure to recall” and GFC for its “apparent failure to document . . . whether it was involved in concrete disposal” (majority op at 504). But a small business cannot reasonably be expected to produce specific proof, years after the event, of everything it did not do. If I were asked whether I put a large, heavy object in a public trash can three years ago, I could only answer as Johnson did: I do not remember everything I did then, but I know from my custom and practice that I did not do that. GFC’s reliance on its customary procedures was sufficient to meet its summary judgment burden.
In opposition to GFC’s summary judgment motion, plaintiff offered no evidence at all to connect GFC to the disposal of the concrete. If concrete work was done on this project, it could equally well have been done either by the general contractor, Restani, or by GFC—indeed, my reading of the record suggests that it is slightly more likely that Restani did any such work. And a third possibility existed: that the source of the debris in the trash can was neither of those two contractors, but someone who entered the park after the contractors’ work was done. The construction job was largely completed by May 20, eight days before the accident, and there is no evidence of any work done after May 24. (Any concrete removal would have to have been done long before.) Plaintiff’s own testimony, as the majority acknowledges, “suggested that Loreto Park reopened to the public on May 26th, two days before her accident” (majority op at 505). The majority strains to find in the testimony of plaintiffs coworker, who said that the day of the accident “was our first day back to Loreto Park” (emphasis added), a basis for the majority’s surmise “that the park may not have reopened until the day of the accident” (id. [emphasis added]).
No plaintiffs verdict here could rest on anything but speculation. Summary judgment should have been granted dismissing the complaint.
*509 Judges Ciparick, Graffeo and Jones concur with Chief Judge Lippman; Judge Smith dissents in a separate opinion in which Judges Read and Pigott concur.
Order affirmed, etc.