Summary
In DeSantis v Lessing's, Inc. (46 AD3d 742), the defendant, unlike in the present case, was not precluded from submitting evidence, which it did in the form of the plaintiffs deposition testimony.
Summary of this case from Mendoza v. Highpoint Associates, IX, LLCOpinion
No. 2007-06104.
December 18, 2007.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered June 15, 2007, which, upon an order of the same court dated March 14, 2007, granting the defendant's motion for summary judgment dismissing the complaint, is in favor of the defendant and against her dismissing the complaint.
John H. Mulvehill, St. James, N.Y., for appellant.
Purcell Ingrao, P.C., Mineola, N.Y. (Terrance J. Ingrao and Lynn A. Ingrao of counsel), for respondent.
Before: Miller, J.P., Crane, Dillon and Balkin, JJ., concur.
Ordered that the judgment is affirmed, with costs.
The defendant established its prima facie entitlement to judgment as a matter of law by submitting the plaintiffs deposition testimony, in which she was unable to explain what caused her to trip and fall ( see Curran v Esposito, 308 AD2d 428, 429; Hartman v Mountain Val. Brew Pub, 301 AD2d 570). The evidence which the plaintiff submitted in opposition to the motion for summary judgment, consisting primarily of an affidavit prepared by her expert, William Marietta, Ph.D., failed to raise a triable issue of fact ( see CPLR 3212 [b]). New York State Uniform Fire Prevention and Building Code § 765.4 (a) (7) ( see 19 NYCRR 1221.1), the provision upon which Dr. Marietta relied, explicitly governs exit stairways and thus does not apply to the door saddle in question here, which separated two interior rooms at the defendant's facility ( see Griffin v High Fives Rest, 271 AD2d 646, 646-647; cf. Chaehee Jung v Kum Gang, Inc., 22 AD3d 441, 442-443).
The plaintiffs remaining contentions are without merit.