Arbusto v. Amerada Hess Corp.

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2005
• Status: Published

Opinion

In 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.