Rodrigues v. Village of Ossining

76 A.D.2d 962, 907 N.Y.S.2d 504

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 14, 2010
• Status: Published

Opinion

In an action to recover damages for wrongful death, etc., the plaintiff Joseph Rodrigues appeals from an order of the Supreme Court, Westchester County (DiBella, J.), entered November 24, 2009, which granted the motion of the defendant R. Barlaam for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

John Paul Rodrigues (hereinafter the decedent) allegedly died as a result of injuries sustained after he fell from the sanitation truck upon which he was working. The plaintiffs commenced this action alleging, inter alia, that the defendant R. Barlaam’s negligent driving caused the sanitation truck to make evasive maneuvers which, in turn, caused the decedent to fall from the truck, resulting in his fatal injuries.

Barlaam established his prima facie entitlement to judgment as matter of law by submitting, among other things, his deposition testimony, as well as that of the driver of the sanitation truck and one of his crew members, all of whom were present at the time of the accident. The testimony demonstrated, in essence, that the driver of the sanitation truck was not caused to make any evasive maneuvers while driving at any time prior to the decedent’s fall.

The plaintiffs submissions in opposition did not raise a triable issue of fact (see Murphy v New York City Tr. Auth., 73 AD3d 1143 [2010]; Douse v City of New York, 70 AD3d 764 [2010]). The plaintiff submitted, inter alia, the affidavit of a certified accident reconstruction expert, who stated that the only way this accident could have happened was if the truck driver was caused to make evasive maneuvers as a result of Barlaam negligently exiting his driveway in his car, thus causing the decedent’s fall. This conclusion, however, was speculative and conclusory, and it is belied by the collective testimony of the truck driver, his coworker, and Barlaam (see Murphy v New York City Tr. Auth., 73 AD3d at 1143). Accordingly, the Supreme Court properly granted Barlaam’s motion for summary judgment dismissing the complaint insofar as asserted against him. Skelos, J.P., Hall, Roman and Sgroi, JJ., concur.