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Supreme Court, Appellate Division, Second Department, New York.

Michael GIANCHETTA, et al., respondents, v. E.B. MARINE, INC., appellant.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Morenus, Marchese & Cardoza, Westbury, N.Y. (Thomas B. Goren of counsel;  Eileen Baumgartner on the brief), for appellant. Segan, Nemerov & Singer, P.C., New York, N.Y. (Fred J. Hirsh of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Lockman, J.), entered November 24, 1997, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant established prima facie that it did not create the allegedly dangerous condition which may have caused the injured plaintiff to fall and that it did not have actual or constructive notice of that condition.   The plaintiffs' contention that the defendant created the alleged dangerous condition was based on mere speculation (see, Gonzalez v. Pathmark Stores, 251 A.D.2d 627, 676 N.Y.S.2d 488 ).   Moreover, the injured plaintiff merely speculated as to what caused him to fall.   Therefore, the plaintiffs failed to show the existence of an issue of fact as to proximate cause actual or constructive notice (see, Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Bernstein v. City of New York, 69 N.Y.2d 1020, 1021, 517 N.Y.S.2d 908, 511 N.E.2d 52).


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