COLUCCI v. GAS LAND PETROLEUM INC (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Edward T. McLoughlin, J.), dated April 5, 2023.  The order, insofar as appealed from, granted the separate motions of the defendants Vassar Snack Shop, Inc., and Gas Land Petroleum, Inc., for summary judgment dismissing the amended complaint insofar as asserted against each of them.

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

In October 2019, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell on property owned by the defendant Gas Land Petroleum, Inc. The defendant Vassar Snack Shop, Inc., allegedly leased part of the property to operate a convenience store.  Gas Land Petroleum, Inc., and Vassar Snack Shop, Inc. (hereinafter together the defendants) separately moved for summary judgment dismissing the amended complaint insofar as asserted against each of them.  The Supreme Court, inter alia, granted the motions and dismissed the amended complaint insofar as asserted against the defendants.  The plaintiff appeals.  We affirm, but on grounds different than those relied on by the court (see Sanchez v. St. John's University, 224 A.D.3d 859, 205 N.Y.S.3d 478).

The defendants each established their prima facie entitlement to judgment as a matter of law by submitting a transcript of the deposition testimony of the plaintiff, which demonstrated that she could not identify what had caused her to fall without engaging in speculation (see Sanchez–Trujillo v. Beach 119, LLC, 225 A.D.3d 726, 205 N.Y.S.3d 221;  Buckstine v. Schor, 213 A.D.3d 730, 731, 184 N.Y.S.3d 90).  In opposition, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff's contention, the affidavit of the plaintiff's husband was speculative inasmuch as he did not witness the plaintiff's fall and only surmised that it was caused by a purported defect on the property (see generally DiSanto v. Spahiu, 169 A.D.3d 861, 863, 94 N.Y.S.3d 167;  Reiss v. Ulster County Agric. Socy., 78 A.D.3d 679, 680, 910 N.Y.S.2d 164).

Accordingly, the Supreme Court properly granted the defendants' separate motions for summary judgment dismissing the amended complaint insofar as asserted against each of them.

IANNACCI, J.P., MALTESE, FORD and LANDICINO, JJ., concur.