Simkowitz v. Congregation Machzikei Torah

81 A.D.3d 631, 915 N.Y.S.2d 877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2011
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Berliner, J.), entered January 12, 2010, 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 submitting, inter alia, the deposition testimony of the injured plaintiff that he was unable to identify the cause of his fall (see Murphy v New York City Tr. Auth., 73 AD3d 1143 [2010]; Blochl v RT Long Is. Franchise, LLC, 70 AD3d 993 [2010]; Hunt v Meyers, 63 AD3d 685 [2009]; Slattery v O’Shea, 46 AD3d 669, 670 [2007]). In opposition, the plaintiffs failed to submit evidentiary proof in admissible form sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The affidavit of the plaintiffs’ witness, who did not see the injured plaintiff fall and arrived at the scene “a few minutes” later, was insufficient to raise a triable issue of fact (see Patrick v Costco Wholesale Corp., 77 AD3d 810 [2010]; Hartman v Mountain Val. Brew Pub, 301 AD2d 570 [2003]). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Mastro, J.P., Chambers, Roman and Cohen, JJ., concur.