DeSantis v. Lessing's, Inc.

46 A.D.3d 742, 849 N.Y.S.2d 580

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2007
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered June 15, 2007, which, upon an order of the same court dated March 14, 2007, granting the defendant’s motion for summary judgment dismissing the complaint, is in favor of the defendant and against her dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The defendant established its prima facie entitlement to judgment as a matter of law by submitting the plaintiffs deposition testimony, in which she was unable to explain what caused her to trip and fall (see Curran v Esposito, 308 AD2d 428, 429 [2003]; Hartman v Mountain Val. Brew Pub, 301 AD2d 570 [2003]). The evidence which the plaintiff submitted in opposition to the motion for summary judgment, consisting primarily of an affidavit prepared by her expert, William Marietta, Ph.D., failed to raise a triable issue of fact (see CPLR 3212 [b]). New York State Uniform Fire Prevention and Building Code § 765.4 (a) (7) (see 19 NYCRR 1221.1), the provision upon which Dr. Marietta relied, explicitly governs exit stairways and thus does not apply to the door saddle in question here, which separated two interior rooms at the defendant’s facility (see Griffin v High Fives Rest., 271 AD2d 646, 646-647 [2000]; cf. Chaehee Jung v Kum Gang, Inc., 22 AD3d 441, 442-443 [2005]).

The plaintiff’s remaining contentions are without merit. Miller, J.P, Crane, Dillon and Balkin, JJ., concur.