BOTTIGLIERI v. WHEELER

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

Nicholas BOTTIGLIERI, etc., respondent, v. Jeffrey WHEELER, et al., appellants.

Decided: March 27, 2007

A. GAIL PRUDENTI, P.J., STEVEN W. FISHER, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Zachary & Zachary, P.C., Staten Island, N.Y. (Deborah C. Zachary of counsel), for appellants. Bosco, Bisignano & Mascolo, Staten Island, N.Y. (James A. Maleady of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated April 24, 2006, which denied their motion for summary judgment dismissing the complaint.

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

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of his fall (see Rodriguez v. Cafaro, 17 A.D.3d 658, 794 N.Y.S.2d 113;  Arbusto v. Amerada Hess Corp., 16 A.D.3d 527, 528, 790 N.Y.S.2d 892;   Dapp v. Larson, 240 A.D.2d 918, 918-919, 659 N.Y.S.2d 130).   In opposition, the plaintiff failed to raise a triable issue of fact.   The affidavit of the plaintiff's expert submitted in opposition to the motion was based on speculation and was therefore insufficient to raise a triable issue of fact (see Tower Ins. Co. v. Allstate Ins. Co., 31 A.D.3d 630, 631, 817 N.Y.S.2d 919).   Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

In light of our determination, we need not reach the defendants' remaining contentions.

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