Opinion
No. 2020-03600 Index No. 618444/16
07-06-2022
Justin Mercurio, et al., appellants, v. Jonathan R. Dayton, respondent.
Faber & Troy, Woodbury, NY (Salvatore V. Agosta of counsel), for appellants. Martyn, Martyn, Smith & Murray, Hauppauge, NY (Marie E. Holbrook of counsel), for respondent.
Faber & Troy, Woodbury, NY (Salvatore V. Agosta of counsel), for appellants.
Martyn, Martyn, Smith & Murray, Hauppauge, NY (Marie E. Holbrook of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (George M. Nolan, J.), dated March 12, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Justin Mercurio (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action against the defendant, inter alia, to recover damages for injuries he allegedly sustained when he rolled his ankle while walking on a brick path on the defendant's property in East Hampton. The defendant moved for summary judgment dismissing the complaint on the ground, inter alia, that the injured plaintiff was unable to identify the cause of his injury. In an order dated March 12, 2020, the Supreme Court granted the defendant's motion. The plaintiffs appeal.
In a premises liability case, "[a] defendant may... establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her injury without engaging in speculation" (Marazita v City of New York, 202 A.D.3d 951, 953; see Kozik v Sherland & Farrington, Inc., 173 A.D.3d 994, 995; Mitgang v PJ Venture HG, LLC, 126 A.D.3d 863, 863-864; Ash v City of New York, 109 A.D.3d 854, 855). Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint through the submission of the transcript of the injured plaintiff's deposition testimony, which demonstrated that the injured plaintiff was unable to identify either where on the brick path his injury occurred or what defect in the brick path, if any, caused his ankle to roll (see Mitgang v PJ Venture HG, LLC, 126 A.D.3d at 863-864; Ash v City of New York, 109 A.D.3d at 855-856).
In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, the expert report submitted in opposition failed to establish a causal link between the alleged injury and unspecified defects in the brick path that the expert observed more than four years after the injured plaintiff's accident (see Savitz v Lido Knitting, Inc., 199 A.D.3d 733, 735). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, we need not reach the plaintiffs' remaining contention.
DILLON, J.P., ROMAN, MALTESE and DOWLING, JJ., concur.