Sheffield v. Joseph

4 A.D.3d 522, 771 N.Y.S.2d 729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 2004
• Status: Published

Opinion

an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered February 27, 2003, as granted the defendants’ respective motions for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiffs brought this action against the City of Peekskill and the owner of the property where the plaintiff Corin Sheffield (hereinafter the infant plaintiff) allegedly tripped and fell. The defendants made out their prima facie entitlement to summary judgment by establishing that the plaintiffs were merely speculating as to the cause of the infant plaintiffs fall (see Curran v Esposito, 308 AD2d 428 [2003]; Christopher v New York City Tr. Auth., 300 AD2d 336 [2002]). The burden then shifted to the plaintiffs to show that a triable issue of fact existed regarding the cause of the injury (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The plaintiffs did not meet this burden. Therefore, the Supreme Court properly granted summary judgment to both defendants.

In light of our determination we need not reach the parties’ remaining contentions. Smith, J.P., Goldstein, H. Miller and Townes, JJ., concur.