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

Willie COFIELD, Jr., Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Appellant.

Decided: April 27, 1998

Before BRACKEN, J.P., and THOMPSON, PIZZUTO and FLORIO, JJ. Jeffrey Samel, New York City (David Samel, of counsel), for appellant. Saasto & Hirsch, Brooklyn (Robert Alan Saasto, of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Vinik, J.), dated June 25, 1997, which denied its motion for summary judgment.

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

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also, Pitchon v. City of New York, 243 A.D.2d 548, 664 N.Y.S.2d 559).   The complaint alleged, inter alia, that the plaintiff was assaulted in the Weeksville Gardens Housing Development by an intruder who purportedly entered the premises as a result of the alleged negligence of the defendant.   However, the defendant's submissions demonstrated that it was impossible to identify the assailant.   Thus, it was impossible to determine whether he or she was an intruder who gained access to the premises due to the defendant's alleged negligence.   The plaintiff's opposing allegations rest upon speculative assertions with respect to the identity of the assailant, which are insufficient to defeat the defendant's motion (see, Pitchon v. City of New York, supra;  see also, Fowler v. New York City Hous. Auth., 243 A.D.2d 284, 663 N.Y.S.2d 32;  Tolliver v. New York City Housing Author., 238 A.D.2d 187, 655 N.Y.S.2d 534;  Gleaton v. New York City Hous. Auth., 221 A.D.2d 504, 633 N.Y.S.2d 399).


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