Opinion
2001-10631
Argued November 7, 2002.
December 16, 2002.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Cammer, J.), dated October 29, 2001, which denied its motion for summary judgment dismissing the complaint.
Dubow Smith, Bronx, N.Y. (Israelson Gold, Plainview, N.Y. [Jeffrey B. Gold] of counsel), for appellant.
Michael N. David, New York, N.Y., for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant demonstrated its prima facie entitlement to summary judgment by establishing that it neither created a defective condition in the wooden walkway leading to its restaurant upon which the plaintiff's decedent Isaac Tiano allegedly fell, nor had actual or constructive notice of any defect (see Constance v. Food Emporium, 289 A.D.2d 363; Slater v. Stop Shop Supermarket Co., 282 A.D.2d 445; Ferris v. County of Suffolk, 174 A.D.2d 70). In opposition, the plaintiff failed to establish the existence of a triable issue of fact (see O'Callaghan v. Great Atl. Pac. Tea Co., 294 A.D.2d 416). The plaintiff's decedent never identified the cause of his fall before he died (of unrelated causes) (see Skinner v. City of Glen Cove, 216 A.D.2d 381), and his son-in-law, although present during the incident, was also unable to identify any causative defect (see Bongiorno v. Penske Auto. Ctr., 289 A.D.2d 520). The Supreme Court therefore should have granted the defendant's motion.
ALTMAN, J.P., S. MILLER, LUCIANO and RIVERA, JJ., concur.