Opinion
2011-11-22
Luann MALLEN, appellant, v. FARMINGDALE LANES, LLC, respondent.
Robert K. Young & Associates, P.C., Merrick, N.Y. (Gary J. Young and Jennifer Deaver of counsel), for appellant. Callahan & Fusco, LLC, New York, N.Y. (Matthew D. Stockwell of counsel), for respondent.
Robert K. Young & Associates, P.C., Merrick, N.Y. (Gary J. Young and Jennifer Deaver of counsel), for appellant. Callahan & Fusco, LLC, New York, N.Y. (Matthew D. Stockwell of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Iannacci, J.), entered October 7, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff, which demonstrated that the plaintiff could not identify the cause of her fall ( see Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 810, 909 N.Y.S.2d 543; Blochl v. RT Long Is. Franchise, LLC, 70 A.D.3d 993, 895 N.Y.S.2d 511; Louman v. Town of Greenburgh, 60 A.D.3d 915, 876 N.Y.S.2d 112).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's expert affidavit was speculative and conclusory and, therefore, insufficient to raise a triable issue of fact ( see Fotiatis v. Cambridge Hall Tenants Corp., 70 A.D.3d 631, 632, 895 N.Y.S.2d 456; Pappas v. Cherry Cr., Inc., 66 A.D.3d 658, 659, 888 N.Y.S.2d 511; Rivas–Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 558, 883 N.Y.S.2d 552). Further, the plaintiff's contention that incident reports regarding prior accidents raised a triable issue of fact as to whether there was a dangerous condition or whether the defendant had notice of any such condition is speculative, as there was no evidence that those accidents were similar in nature to the plaintiff's accident ( see Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 415 N.E.2d 972; Gjonaj v. Otis El. Co., 38 A.D.3d 384, 385, 832 N.Y.S.2d 189). The plaintiff's reliance upon a statement as to the cause of her accident contained in an incident report is also unavailing, as the report contained hearsay and the plaintiff failed to lay the proper foundation for its admission as a business record ( see CPLR 4518[a]; Roldan v. New York Univ., 81 A.D.3d 625, 627, 916 N.Y.S.2d 162; Stock v. Otis El. Co., 52 A.D.3d 816, 817, 861 N.Y.S.2d 722; Daliendo v. Johnson, 147 A.D.2d 312, 321, 543 N.Y.S.2d 987). “Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is the only evidence submitted” ( Stock v. Otis El. Co., 52 A.D.3d at 816–817, 861 N.Y.S.2d 722 [internal quotation marks omitted] ). Accordingly, since the hearsay evidence, by itself, was insufficient to raise a triable issue of fact, and the other evidence submitted by the plaintiff in opposition to the defendant's motion also failed to raise a triable issue of fact, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.