| Corrado v Vath |
| 2010 NY Slip Op 00799 [70 AD3d 624] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Christina Corrado et al., Appellants, v Peter M. Vath et al.,Respondents. |
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Suffolk County (Cohalan, J.), dated January 14, 2009, whichgranted the defendants' motion for summary judgment dismissing the complaint, and (2) ajudgment of the same court entered March 19, 2009, which, upon the order, is in favor of thedefendants and against them, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On August 2, 2003, the infant plaintiff, then 11 years old, allegedly sustained injuries whenshe fell off of a bicycle while attempting to ride over two ramps which were erected on thesidewalk at the edge of the defendants' driveway. The plaintiffs and the defendants resided on thesame street. The infant plaintiff's father commenced this action against the defendants on herbehalf and individually. After the completion of pretrial discovery, the defendants moved forsummary judgment dismissing the complaint. The Supreme Court granted the motion, andjudgment was entered thereon. We affirm.
At her deposition, the infant plaintiff testified, inter alia, that she remembered riding up theramp but did not remember coming down. While there was a "little space" between the tworamps, the infant plaintiff stated that she did not know what caused her to fall. On the day of theaccident and prior to her fall, the infant plaintiff had gone over the ramps several times without[*2]incident. The defendants established their prima facieentitlement to judgment as a matter of law by submitting, inter alia, the infant plaintiff'sdeposition testimony, as well as that of her parents and the defendants, which demonstrated thatany finding as to proximate cause would be based on mere speculation (see Gonzalo v Joline Estates HomeownersAssn., Inc., 29 AD3d 631, 632 [2006]; Rygel v 8750 Bay Parkway, LLC, 16 AD3d 572, 572-573 [2005];Johnson v Leach Co., 5 AD3d735, 736 [2004]). In opposition, the plaintiffs failed to raise a triable issue of fact as to thecause of the infant plaintiff's accident. They offered only speculation that the accident wascaused by a gap between the two ramps catching one of the wheels of the bicycle (seeGonzalo v Joline Estates Homeowners Assn., Inc., 29 AD3d at 632; Mitchell v Mongoose, Inc., 19 AD3d380, 381 [2005]). At best, the plaintiffs' evidence showed a possibility that the infantplaintiff's fall was caused by a gap between the ramps. Without more, the trier of fact would berequired to base a finding of proximate cause upon nothing more than speculation (seeCurran v Esposito, 308 AD2d 428, 429 [2003]).
The plaintiffs' remaining contentions are either improperly raised for the first time on appealor without merit. Dillon, J.P., Covello, Miller and Chambers, JJ., concur.