Arbusto v. Amerada Hess Corp.

Appellate Division of the Supreme Court of New York

Arbusto v. Amerada Hess Corp.

16 A.D.3d 527, 790 N.Y.S.2d 892, 2005 N.Y. App. Div. LEXIS 2958

Appellate Division of the Supreme Court of the State of New York·Decided March 21, 2005·Published·Cited by 4 cases

Opinion

[528]*528In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated March 17, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of his fall (see Birman v Birman, 8 AD3d 219 [2004]; Garvin v Rosenberg, 204 AD2d 388 [1994]).

The plaintiff’s opposing affidavit, in which he sought to identify the cause of his fall, merely raised a feigned issue of fact, which was insufficient to defeat the motion (see Garvin v Rosenberg, supra). In addition, the unsworn report of the plaintiffs expert failed to set forth any alleged unsafe condition which contributed to the plaintiffs fall (see Birman v Birman, supra at 220; Speirs v Dick’s Clothing & Sporting Goods, 268 AD2d 581 [2000]). Therefore, the Supreme Court properly granted summary judgment to the defendant.

The plaintiffs remaining contention is without merit. Florio, J.P., H. Miller, Cozier and S. Miller, JJ., concur.

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[528]*528In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated March 17, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of his fall (see Birman v Birman, 8 AD3d 219 [2004]; Garvin v Rosenberg, 204 AD2d 388 [1994]).

The plaintiff’s opposing affidavit, in which he sought to identify the cause of his fall, merely raised a feigned issue of fact, which was insufficient to defeat the motion (see Garvin v Rosenberg, supra). In addition, the unsworn report of the plaintiffs expert failed to set forth any alleged unsafe condition which contributed to the plaintiffs fall (see Birman v Birman, supra at 220; Speirs v Dick’s Clothing & Sporting Goods, 268 AD2d 581 [2000]). Therefore, the Supreme Court properly granted summary judgment to the defendant.

The plaintiffs remaining contention is without merit. Florio, J.P., H. Miller, Cozier and S. Miller, JJ., concur.

Arbusto v. Amerada Hess Corp., 16 A.D.3d 527, 790 N.Y.S.2d 892, 2005 N.Y. App. Div. LEXIS 2958 (N.Y. Ct. App. 2005).

Pincite

16 A.D.3d 527 (Arbusto v. Amerada Hess Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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