Opinion
2002-07355
Submitted April 24, 2003.
June 16, 2003.
In an action to recover damages for personal injuries, etc., the defendant Edward Ehrbar, Inc., appeals from so much of an order of the Supreme Court, Nassau County (Honorof, J.), dated June 24, 2002, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendant Edward Ahern, a/k/a Edward Aherne, a/k/a Edward Ahearn cross-appeals, as limited by his brief, from so much of the same order as denied that branch of his cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.
Smetana, Schwartz McKeown, Melville, N.Y. (Arthur Simuro of counsel), for appellant Edward Ehrbar, Inc.
Arlene Zalayet, Mineola, N.Y. (Robert A. Schultz of counsel), for appellant Edward Ahern, a/k/a Edward Aherne, a/k/a Edward Ahearn.
Kirk Medina Lipton Ketover, LLC, Garden City, N.Y. (Norman D. Lipton of counsel), for respondents.
Before: SANDRA J. FEUERSTEIN, J.P., LEO F. McGINITY, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs, the motion and that branch of the cross motion which was for summary judgment are granted, the complaint and all cross claims are dismissed insofar as asserted against the defendants Edward Ehrbar, Inc., and Edward Ahern, a/k/a Edward Aherne, a/k/a Edward Ahearn, and the action against the remaining defendants is severed.
The plaintiff Paul Zimmerman allegedly sustained injuries while descending steps in front of a house. He claimed that the cause of his fall was a height differential of the riser of the bottom step compared to the other steps.
The appellants established their entitlement to judgment as a matter of law by submitting evidence that the alleged cause of the plaintiff's fall was based on speculation (see Bitterman v. Grotyohann, 295 A.D.2d 383, 384; Schmidt v. Barstow Assocs., 276 A.D.2d 784; Dapp v. Larson, 240 A.D.2d 918, 919; Rambo v. Longmore, 269 App. Div. 859, affd, 295 N.Y. 792). In opposition, the plaintiffs failed to present sufficient evidence to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557).
In light of our determination, we need not reach the parties' remaining contentions.
FEUERSTEIN, J.P., McGINITY, ADAMS and CRANE, JJ., concur.