Opinion
2015-01-21
Daniel BARDALES, appellant, v. VAM REALTY CORP., defendant third-party plaintiff-respondent; La Bottega of Huntington, LLC, third-party defendant-respondent.
Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker of counsel), for appellant. Farber, Brocks & Zane, LLP, Garden City, N.Y. (Tracy L. Frankel of counsel), for defendant third-party plaintiff-respondent.
Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker of counsel), for appellant. Farber, Brocks & Zane, LLP, Garden City, N.Y. (Tracy L. Frankel of counsel), for defendant third-party plaintiff-respondent.
Armiento, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Harriet Wong of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated January 29, 2013, as granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The defendant established its entitlement to judgment as a matter of law dismissing the complaint through the submission of, among other things, the plaintiff's deposition testimony, which established that he was unable to identify the cause of his fall. While the plaintiff testified that the staircase handrail ended before the last step, a determination that this, or any of the other alleged defects in the staircase, was the proximate cause of the plaintiff's accident, rather than a misstep or loss of balance, would be speculative ( see Alabre v. Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 1287, 924 N.Y.S.2d 174; Thompson v. Commack Multiplex Cinemas, 83 A.D.3d 929, 930, 921 N.Y.S.2d 304; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435, 814 N.Y.S.2d 178; Rodriguez v. Cafaro, 17 A.D.3d 658, 658, 794 N.Y.S.2d 113; Birman v. Birman, 8 A.D.3d 219, 777 N.Y.S.2d 310). Moreover, since the plaintiff was carrying a pot weighing at least 35 to 40 pounds with both hands as he descended the staircase, any alleged defect in the handrail was not a proximate cause of the fall ( see Plowden v. Stevens Partners, LLC, 45 A.D.3d 659, 660–661, 846 N.Y.S.2d 238; Pancella v. County of Suffolk, 16 A.D.3d 566, 790 N.Y.S.2d 876; Daria v. Beacon Capital Co., 299 A.D.2d 312, 312, 749 N.Y.S.2d 79; see also Ridolfi v. Williams, 49 A.D.3d 295, 296, 853 N.Y.S.2d 56). In opposition, the plaintiff failed to raise a triable issue of fact ( see Kloepfer v. Aslanis, 106 A.D.3d 956, 956–957, 966 N.Y.S.2d 151 ; Murphy v. New York City Tr. Auth., 73 A.D.3d 1143, 1144, 902 N.Y.S.2d 144). The plaintiff's affidavit presented what clearly appeared to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and thus was insufficient to defeat the defendant's motion ( see Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint. MASTRO, J.P., AUSTIN, MALTESE and BARROS, JJ., concur.