MARTONE v. SHIELDS

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Tara MARTONE, appellant, v. Donald SHIELDS, respondent, et al., defendants.

Decided: March 16, 2010

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ. McCarthy Fingar LLP, White Plains, N.Y. (Joseph J. Brophy and Dina M. Aversano of counsel), for appellant. Alan B. Brill, P.C., Suffern, N.Y. (Donna M. Brautigam of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated November 3, 2008, which granted the motion of the defendant Donald Shields for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

The defendant Donald Shields (hereinafter the defendant) established his entitlement to judgment as a matter of law by demonstrating that the plaintiff did not know what caused her to fall (see Reiff v. Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015, 864 N.Y.S.2d 175; Denicola v. Costello, 44 A.D.3d 990, 844 N.Y.S.2d 438; Birman v. Birman, 8 A.D.3d 219, 777 N.Y.S.2d 310; Curran v. Esposito, 308 A.D.2d 428, 429, 764 N.Y.S.2d 209). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The expert affidavit submitted by the plaintiff in opposition to the motion was insufficient to raise a triable issue of fact as to whether the staircase at issue violated any applicable codes or industry standards (see Pappas v. Cherry Cr., Inc., 66 A.D.3d 658, 659, 888 N.Y.S.2d 511; Ryan v. KRT Prop. Holdings, LLC, 45 A.D.3d 663, 664-665, 845 N.Y.S.2d 431; Meehan v. David J. Hodder & Son, Inc., 13 A.D.3d 593, 594, 788 N.Y.S.2d 134).

In any event, there was no evidence connecting any of the allegedly unsafe conditions to the plaintiff's fall (see Reiff v. Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015, 864 N.Y.S.2d 175; Denicola v. Costello, 44 A.D.3d at 990-991, 844 N.Y.S.2d 438; Guiterrez v. Iannacci, 43 A.D.3d 868, 841 N.Y.S.2d 377; Lissauer v. Shaarei Halacha, Inc., 37 A.D.3d 427, 829 N.Y.S.2d 229; Birman v. Birman, 8 A.D.3d at 220, 777 N.Y.S.2d 310; Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 735 N.Y.S.2d 585). Contrary to the plaintiff's contention, the Noseworthy doctrine (see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) does not apply to this case since the plaintiff and the defendant are on an equal footing as to their access to knowledge of the events which caused the plaintiff's injuries (see Kuravskaya v. Samjo Realty Corp., 281 A.D.2d 518, 721 N.Y.S.2d 836; Gayle v. City of New York, 256 A.D.2d 541, 542, 682 N.Y.S.2d 426). The plaintiff is not relieved of the obligation to provide some proof from which negligence can reasonably be inferred, and she failed to submit evidence sufficient to raise a triable issue of fact in this regard (see DeLuca v. Cerda, 60 A.D.3d 721, 722, 875 N.Y.S.2d 520; Seery v. Mulholland, 41 A.D.3d 829, 830, 839 N.Y.S.2d 513; Blanco v. Oliveri, 304 A.D.2d 599, 600, 758 N.Y.S.2d 376; Lynn v. Lynn, 216 A.D.2d 194, 195, 628 N.Y.S.2d 667).

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