Anthony McFadden, appellant, v. 726

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

Anthony McFadden, appellant, v. 726 Liberty Corp., respondent.

2010–10593 (Index No. 3069/09)

Decided: November 29, 2011

WILLIAM F. MASTRO, J.P. ANITA R. FLORIO PLUMMER E. LOTT JEFFREY A. COHEN, JJ. Frederic A. Nicholson, Brooklyn, N.Y. (Elefterakis & Elefterakis, P.C. [Nicholas Elefterakis], of counsel), for appellant. Russo, Keane & Toner, LLP, New York, N.Y. (Thomas F. Keane, Fern Flomenhaft, and Theresa C. Villani of counsel), for respondent.

Submitted—November 4, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), entered October 1, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

“ ‘[A] plaintiff's inability to identify the cause of the [subject] fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation’ ” (Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286, 1287, quoting Rajwan v. 109–23 Owners Corp., 82 AD3d 1199, 1200;  see Capasso v. Capasso, 84 AD3d 997, 998;  Patrick v. Costco Wholesale Corp., 77 AD3d 810).   Here, the defendant established its 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 Capasso v. Capasso, 84 AD3d at 998;  Patrick v. Costco Wholesale Corp., 77 AD3d at 811).   In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562–564;  McCord v Olympia & York Maiden Lane Co., 8 AD3d 634, 636).

Accordingly, the Supreme Court correctly granted the defendant's motion for summary judgment dismissing the complaint.

MASTRO, J.P., FLORIO, LOTT and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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