| Denicola v Costello |
| 2007 NY Slip Op 08178 [44 AD3d 990] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Theresa Denicola et al., Appellants, v Joseph G. Costello,Respondent. |
—[*1] Robin, Harris, King, Fodera & Richman (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y.[Kenneth Mauro and Deborah F. Peters] of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), datedMay 18, 2006, as granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant established his prima facie entitlement to judgment as a matter of law bydemonstrating that the injured plaintiff was unable to identify the cause of her fall (seeBottiglieri v Wheeler, 38 AD3d 818 [2007]; Lissauer v Shaarei Halacha, Inc., 37AD3d 427 [2007]; Rodriguez v Cafaro, 17 AD3d 658 [2005]; Birman v Birman,8 AD3d 219 [2004]). In opposition, the plaintiffs failed to submit evidence sufficient to raise atriable issue of fact. The affidavit submitted by the injured plaintiff in opposition to the motionmerely raised a feigned factual issue designed to avoid the consequences of her earlier depositiontestimony (see Tejada v Jonas, 17 AD3d 448 [2005]; Hartman v Mountain Val. BrewPub, 301 AD2d 570 [2003]; Koller v Leone, 299 AD2d 396 [2002]; Capraro vStaten Is. Univ. Hosp., 245 AD2d 256 [1997]). The plaintiffs also submitted an affidavit ofan expert who alleged that the staircase was in violation of various provisions of theAdministrative Code of the City of New York. However, since the injured plaintiff did not knowwhat caused her to fall, and did not claim at her deposition that she would not have fallen ifhandrails had been in place, it would be speculative to assume that these alleged [*2]violations proximately caused her fall (see Guiterrez v Iannacci43 AD3d 868 [2007]; Lissauer v Shaarei Halacha, Inc., 37 AD3d 427 [2007];Birman v Birman, 8 AD3d 219 [2004]; Bitterman v Grotyohann, 295 AD2d 383[2002]). Prudenti, P.J., Fisher, Dillon and Carni, JJ., concur.