GRODSKI v. GREENPOINT BANK (2005)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated May 20, 2003, as granted that branch of the motion of the defendant Greenpoint Bank which was for summary judgment dismissing the complaint insofar as asserted against it.

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

The plaintiff was using a friend's swimming pool when he dove into the shallow end of the water and sustained serious injuries.   The plaintiff had used the pool a number of times before the accident and was well aware that it had a shallow end and a deep end.

The defendant Greenpoint Bank (hereinafter Greenpoint), which had commenced an action to foreclose a mortgage on the property where the swimming pool was located, established its entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that the plaintiff's act of diving into the shallow end of the pool was the proximate cause of the accident (see Smith v. Stark, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841;  Bassi v. Cucinello, 237 A.D.2d 238, 655 N.Y.S.2d 388;  Bird v. Zelin, 237 A.D.2d 107, 654 N.Y.S.2d 137;  see also Clifford v. Harrow Stores, 256 A.D.2d 602, 683 N.Y.S.2d 126;  Finguerra v. Conn, 252 A.D.2d 463, 676 N.Y.S.2d 154;  Edmonds v. Fodera, 239 A.D.2d 383, 658 N.Y.S.2d 325;  Valdez v. City of New York, 148 A.D.2d 697, 539 N.Y.S.2d 445;  Campbell v. Muswim Pools, 147 A.D.2d 977, 537 N.Y.S.2d 412).   In response, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.   The plaintiff's mere expressions of hope that further discovery would reveal something helpful to his case provided no basis for denying Greenpoint's motion for summary judgment (see Manney v. GE Med. Sys., 7 A.D.3d 763, 776 N.Y.S.2d 852;  Mazzaferro v. Barterama Corp., 218 A.D.2d 643, 630 N.Y.S.2d 346).