MARTINEZ v. CITY OF NEW YORK (2019)

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered May 18, 2016.  The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant E.C.C.O. III Enterprises, Inc.

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

The decedent was killed as a result of an accident that occurred on Queens Boulevard in the vicinity of the entry ramp from the Van Wyck Expressway.  At the time of the accident, there was a construction project encompassing the ramp and the surrounding area.  The decedent's brother, as the administrator of the decedent's estate, commenced this action against, among others, the defendant E.C.C.O. III Enterprises, Inc. (hereinafter ECCO), the general contractor for the construction project.  The plaintiff also commenced a related claim against the State of New York and the New York State Department of Transportation in the Court of Claims (see Martinez v. State of New York, 168 A.D.3d 710, 89 N.Y.S.3d 648, 2019 WL 138513;  decided herewith).  The defendants in this action moved for summary judgment dismissing the complaint.  The Supreme Court granted the motion.  The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against ECCO. We affirm the order insofar as appealed from.

We agree with the Supreme Court that, in support of their motion, the defendants demonstrated ECCO's prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiff was unable to identify the cause of the decedent's accident (see Gani v. Avenue R Sephardic Congregation, 159 A.D.3d 873, 874, 72 N.Y.S.3d 561;  Manzo v. 372 Doughty Blvd. Corp., 147 A.D.3d 930, 930, 47 N.Y.S.3d 137;  McRae v. Venuto, 136 A.D.3d 765, 766, 24 N.Y.S.3d 745;  O'Connor v. Metro Mgt. Dev., Inc., 130 A.D.3d 698, 699, 15 N.Y.S.3d 59;  Vazquez v. Flesor, 128 A.D.3d 808, 809, 9 N.Y.S.3d 150;  Pol v. Gjonbalaj, 125 A.D.3d 955, 955, 5 N.Y.S.3d 186;  Mauskopf v. 1528 Owners Corp., 102 A.D.3d 930, 931, 958 N.Y.S.2d 759;  Knudsen v. Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 A.D.3d 1058, 1058, 942 N.Y.S.2d 800;  Califano v. Maple Lanes, 91 A.D.3d 896, 897, 938 N.Y.S.2d 140;  Roldan v. New York Univ., 81 A.D.3d 625, 916 N.Y.S.2d 162).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, we agree with the court's determination granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against ECCO.

DILLON, J.P., BALKIN, MILLER and IANNACCI, JJ., concur.