Opinion
Submitted May 30, 2001.
June 18, 2001.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated September 5, 2000, which granted the motion of the defendant Repco Fuel Oil Co., Inc., for summary judgment dismissing the complaint insofar as asserted against it.
Schaerf Sealove, New York, N.Y. (Robert H. Morse of counsel), for appellant.
Jacobowitz, Garfinkel Lesman, New York, N.Y. (Fiedelman McGaw [James K. O'Sullivan] of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, P.J., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, HOWARD MILLER, SANDRA L. TOWNES, JJ.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly tripped and fell over a raised fuel oil cap in a sidewalk. The respondent, Repco Fuel Oil Co., Inc., conceded that it made fuel deliveries to the subject premises. However, the respondent established a prima facie case of entitlement to judgment as a matter of law by demonstrating that it did not create the allegedly dangerous condition. The plaintiff's circumstantial evidence that the respondent caused the fuel cap to be raised was based on mere speculation, and thus, she failed to establish the existence of a triable issue of fact (see, Frankie v. Glen Cove Hous. Auth., 276 A.D.2d 668).
BRACKEN, P.J., FRIEDMANN, FLORIO, H. MILLER and TOWNES, JJ., concur.