DENICOLA v. COSTELLO (2007)

In 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, Kings County (Johnson, J.), dated May 18, 2006, as granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff was unable to identify the cause of her fall (see Bottiglieri v. Wheeler, 38 A.D.3d 818, 832 N.Y.S.2d 639;  Lissauer v. Shaarei Halacha, Inc., 37 A.D.3d 427, 829 N.Y.S.2d 229;  Rodriguez v. Cafaro, 17 A.D.3d 658, 794 N.Y.S.2d 113;  Birman v. Birman, 8 A.D.3d 219, 777 N.Y.S.2d 310).  In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact.  The affidavit submitted by the injured plaintiff in opposition to the motion merely raised a feigned factual issue designed to avoid the consequences of her earlier deposition testimony (see Tejada v. Jonas, 17 A.D.3d 448, 792 N.Y.S.2d 605;  Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570, 754 N.Y.S.2d 31;  Koller v. Leone, 299 A.D.2d 396, 751 N.Y.S.2d 266;  Capraro v. Staten Is. Univ. Hosp., 245 A.D.2d 256, 664 N.Y.S.2d 826).  The plaintiffs also submitted an affidavit of an expert who alleged that the staircase was in violation of various provisions of the Administrative Code of the City of New York. However, since the injured plaintiff did not know what caused her to fall, and did not claim at her deposition that she would not have fallen if handrails had been in place, it would be speculative to assume that these alleged violations proximately caused her fall (see Guiterrez v. Iannacci, 43 A.D.3d 868, 841 N.Y.S.2d 377 [2d Dept. 2007];  Lissauer v. Shaarei Halacha, Inc., 37 A.D.3d 427, 829 N.Y.S.2d 229;  Birman v. Birman, 8 A.D.3d 219, 777 N.Y.S.2d 310;   Bitterman v. Grotyohann, 295 A.D.2d 383, 743 N.Y.S.2d 167).