Irene Zalot, etc., appellant, v. Jan Zieba, et al., defendants third-party plaintiffs-respondents;  Craftman Construction, Inc., third-party defendant- respondent, et al., third-party defendant.

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

Irene Zalot, etc., appellant, v. Jan Zieba, et al., defendants third-party plaintiffs-respondents;  Craftman Construction, Inc., third-party defendant- respondent, et al., third-party defendant.

2009-07781 (Index No. 15079/06)

Decided: February 22, 2011

PETER B. SKELOS, J.P. RUTH C. BALKIN CHERYL E. CHAMBERS LEONARD B. AUSTIN, JJ. The Perecman Firm, PLLC, New York, N.Y. (David H. Perecman and Peter D. Rigelhaupt of counsel), for appellant. Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret and Jeffrey M. Burkhoff of counsel), for defendants third-party plaintiffs-respondents. Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and Michael Baranowicz of counsel), for third-party defendant-respondent.

Argued-October 12, 2010

DECISION & ORDER

In an action to recover damages for wrongful death, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), entered July 27, 2009, as granted that branch of the defendants' motion, joined in by the third-party defendant Craftman Construction, Inc., which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the defendants and the third-party defendant Craftman Construction, Inc., appearing separately and filing separate briefs.

The Supreme Court properly determined that the defendants established their prima facie entitlement to judgment as a matter of law by submitting deposition testimony demonstrating that the plaintiff failed to identify the cause of her decedent's accident (see Hennington v. Ellington, 22 AD3d 721;  Tejada v. Jonas, 17 AD3d 448;  Schafrick v Shinnecock Bait & Tackle Co., 204 A.D.2d 706).   Contrary to the plaintiff's contention, although the deposition transcript of the third-party defendant Jaroslaw Palczwski was not signed, it was certified by the reporter, and was properly considered in support of the defendants' motion since the excerpts thereof included in the record are not challenged as inaccurate (see Bennett v. Berger, 283 A.D.2d 374;  Zabari v. City of New York, 242 A.D.2d 15, 17).   Absent any evidence as to how the accident occurred, the plaintiff's case rests upon mere speculation as to the defendants' negligence and the applicability of the Labor Law.

In opposition to the motion, the plaintiff failed to raise a triable issue of fact.   The Supreme Court properly held that the Noseworthy doctrine (see Noseworthy v. City of New York, 298 N.Y. 76) does not apply because the plaintiff and the defendants are on equal footing as to their access to knowledge of the events which caused the decedent's injuries (see Kuravskaya v. Samjo Realty Corp., 281 A.D.2d 518;  Gayle v. City of New York, 256 A.D.2d 541).   In any event, “[s]peculation, guess and surmise ․ may not be substituted for competent evidence, and where ․ there are several possible causes of [one] accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible” (Agius v. State of New York, 50 A.D.2d 1049, 1050;  see Johnson v. Sniffen, 265 A.D.2d 304;  Scheer v. City of New York, 211 A.D.2d 778).   Here, “[s]ince it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation” (Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 478).

Accordingly, the Supreme Court correctly granted that branch of the defendants' motion, joined in by the third-party defendant Craftman Construction, Inc., which was for summary judgment dismissing the complaint.

SKELOS, J.P., BALKIN, CHAMBERS and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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