Opinion
2002-02957
Argued April 15, 2003.
May 12, 2003.
In an action to recover damages for personal injuries, the defendant Paul's Auto Maintenance appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated February 15, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
O'Connor, O'Connor Hintz Deveney, LLP, Melville, N.Y. (Robin Mary Heaney and William F. Gormley of counsel), for appellant.
Dinkes Schwitzer, New York, N.Y. (Cynthia P. Camamcho and William Dinkes of counsel), for respondent.
Before: DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.
The plaintiff allegedly was injured when she fell on a sidewalk abutting the appellant's service station. The appellant made a prima facie showing of entitlement to judgment as a matter of law by submitting the plaintiff's deposition testimony, which revealed that she did not know what caused her to fall (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Hartman v. Mountain Valley Brew Pub, 301 A.D.2d 570; Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564; Novoni v. La Parma Corp., 278 A.D.2d 393; Barretta v. Trump Plaza Hotel Casino, 278 A.D.2d 262, 263; Robinson v. Lupo, 261 A.D.2d 525). In opposition to the motion, the plaintiff failed to come forward with evidence sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). The affidavit submitted in opposition to the appellant's motion was insufficient, tailored to raise a triable issue of fact, and merely raised a feigned factual issue designed to avoid the consequences of the plaintiff's earlier admission that she did not know the cause of her fall (see Hartman v. Mountain Valley Brew Pub, supra; Lara v. Saint John's Univ., 289 A.D.2d 457; Novoni v. La Parma Corp., supra; Barretta v. Trump Plaza Hotel Casino, supra).
RITTER, J.P., ALTMAN, KRAUSMAN and CRANE, JJ., concur.