Opinion
02-11-2015
Salvatore CALCIANO, Jr., appellant, v. TARRAGON CORPORATION, et al., defendants, F&G Mechanical Corporation, respondent.
Ginsberg & Wolf, P.C., New York, N.Y. (Robert M. Ginsberg of counsel), for appellant. London Fischer LLP, New York, N.Y. (Daniel Zemann, Jr., and Aryeh B. Schneider of counsel), for respondent.
Ginsberg & Wolf, P.C., New York, N.Y. (Robert M. Ginsberg of counsel), for appellant.
London Fischer LLP, New York, N.Y. (Daniel Zemann, Jr., and Aryeh B. Schneider of counsel), for respondent.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Partnow, J.), entered June 3, 2013, as granted that branch of the motion of the defendant F&G Mechanical Corporation which was for summary judgment dismissing the complaint insofar as asserted against it and dismissed the complaint insofar as asserted against that defendant.ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
“A plaintiff's inability to identify the cause of [his or] her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation” (DiLorenzo v. S.I.J. Realty Co., LLC, 115 A.D.3d 701, 702, 981 N.Y.S.2d 590 ; see Montemarano v. Sodexo, Inc., 121 A.D.3d 1059, 995 N.Y.S.2d 207 ; Smith v. Jesadan Meat Corp., 120 A.D.3d 1332, 991 N.Y.S.2d 805 ). Here, the defendant F&G Mechanical Corporation (hereinafter F&G) established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff could not identify the cause of his fall without resorting to speculation (see Dennis v. Lakhani, 102 A.D.3d 651, 958 N.Y.S.2d 170 ; Califano v. Maple Lanes, 91 A.D.3d 896, 897–898, 938 N.Y.S.2d 140 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562–564, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted that branch of F&G's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
MASTRO, J.P., LEVENTHAL, MILLER and MALTESE, JJ., concur.