| Rivera v Port Auth. of N.Y. & N.J. |
| 2010 NY Slip Op 00662 [69 AD3d 917] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Ramon Rivera, Respondent, v Port Authority of New Yorkand New Jersey et al., Appellants. |
—[*1] Joseph P. Ferri, Jr., Garden City, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Cullen, J.), entered May 9, 2008, which denied the motionof the defendant Global Ground North America, LLC, for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the appeal by the defendant Port Authority of New York and New Jersey isdismissed, as it is not aggrieved by the order appealed from (see CPLR 5511); and it isfurther,
Ordered that the order is reversed on the appeal by the defendant Global Ground NorthAmerica, LLC, on the law, the motion of that defendant for summary judgment dismissing thecomplaint insofar as asserted against it is granted, and upon searching the record, summaryjudgment is awarded to the defendant Port Authority of New York and New Jersey dismissingthe complaint insofar as asserted against it; and it is further,
Ordered that one bill of costs is awarded to the defendant Global Ground North America,LLC.
The plaintiff alleged that he was attempting to gain access to the roof of a bus, in the courseof performing maintenance, to close the cover of a condenser located at the top of the bus, whenhe slipped and fell on premises owned by the defendant Port Authority of New York and NewJersey, and occupied by GlobeGround North America, LLC, sued herein as Global GroundNorth America, LLC (hereinafter GGNA). The plaintiff testified at his deposition that he wasusing a metal ladder to get to the top of the bus, and tried to grab one of the covers of thecondenser with his left hand, but he was unable to do so, and fell. He did not remember wherehis right hand was located when he fell, but he testified at his deposition that his right leg wasalready on the roof of the bus when he fell. He did not recall where his left leg was located whenhe fell and, thus, did not recall whether it was on the ladder or the bus. The plaintiff alleged athis deposition that the floor of the premises was wet and greasy. GGNA moved for summaryjudgment dismissing the complaint insofar as asserted against it, contending, inter alia, that theplaintiff did not know what had caused him to fall. In the order appealed from, the SupremeCourt, among other things, denied the motion. [*2]We reverse theorder on the appeal by GGNA.
GGNA established its entitlement to judgment as a matter of law by submitting evidencesufficient to demonstrate that the plaintiff did not know what had caused him to fall (see Davis v Rochdale Vil., Inc., 63AD3d 870 [2009]; Reiff vBeechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]; Manning v 6638 18th Ave. RealtyCorp., 28 AD3d 434 [2006]; Rodriguez v Cafaro, 17 AD3d 658 [2005]; Oettinger v Amerada Hess Corp., 15AD3d 638 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact. Contraryto the plaintiff's contention, under the circumstances, a determination that the alleged hazardouscondition of the floor was a proximate cause of his accident would be based on sheer speculation(see Davis v Rochdale Vil., Inc., 63AD3d 870 [2009]; Oettinger vAmerada Hess Corp., 15 AD3d 638 [2005]; Grob v Kings Realty Assoc., 4 AD3d 394 [2004]).
This Court has the authority to search the record and award summary judgment to anonmoving party with respect to an issue that was the subject of the motion before the SupremeCourt (see Surace v CommonwealthLand Tit. Ins. Co., 62 AD3d 861, 862 [2009]; Madero v Pizzagalli Constr. Co., 62 AD3d 670, 672-673 [2009];DiLernia v Khan, 62 AD3d644, 646 [2009]). GGNA's codefendant, Port Authority of New York and New Jersey,moved for summary judgment dismissing the complaint insofar as asserted against it based onlyon the contention that it was an out-of-possession landlord which had no duty to maintain thepremises at which the plaintiff fell. Upon searching the record, we award summary judgment tothe defendant Port Authority of New York and New Jersey dismissing the complaint insofar asasserted against it on the ground that the plaintiff cannot identify the cause of his fall (seeCPLR 3212 [b]). Fisher, J.P., Angiolillo, Lott and Sgroi, JJ., concur.