Bottiglieri v. Wheeler

Appellate Division of the Supreme Court of New York

Bottiglieri v. Wheeler

38 A.D.3d 818, 832 N.Y.S.2d 639

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 2007

StatusPublished

Cited by2 cases

This text of 38 A.D.3d 818 (Bottiglieri v. Wheeler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bottiglieri v. Wheeler, 38 A.D.3d 818, 832 N.Y.S.2d 639 (N.Y. Ct. App. 2007).

Pincite

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated April 24, 2006, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendants established their 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 Rodriguez v Cafaro, 17 AD3d 658 [2005]; Arbusto v Amerada Hess Corp., 16 AD3d 527, 528 [2005]; Dapp v Larson, 240 AD2d 918, 918-919 [1997]). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiffs expert submitted in op[819]*819position to the motion was based on speculation and was therefore insufficient to raise a triable issue of fact (see Tower Ins. Co. v Allstate Ins. Co., 31 AD3d 630, 631 [2006]). Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the defendants’ remaining contentions. Prudenti, EJ., Fisher, Garni and McCarthy, JJ., concur.

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In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated April 24, 2006, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendants established their 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 Rodriguez v Cafaro, 17 AD3d 658 [2005]; Arbusto v Amerada Hess Corp., 16 AD3d 527, 528 [2005]; Dapp v Larson, 240 AD2d 918, 918-919 [1997]). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiffs expert submitted in op[819]*819position to the motion was based on speculation and was therefore insufficient to raise a triable issue of fact (see Tower Ins. Co. v Allstate Ins. Co., 31 AD3d 630, 631 [2006]). Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the defendants’ remaining contentions. Prudenti, EJ., Fisher, Garni and McCarthy, JJ., concur.

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Bluebook (online)

38 A.D.3d 818, 832 N.Y.S.2d 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bottiglieri-v-wheeler-nyappdiv-2007.

Opinion

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