| Douse v City of New York |
| 2010 NY Slip Op 00921 [70 AD3d 764] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Taiesha S. Douse, Respondent, v City of New York et al.,Respondents, and Green Bus Lines, Inc., Appellant. |
—[*1] Weitz & Luxenberg, P.C., New York, N.Y. (Stuart R. Friedman and Daniel Horner ofcounsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Green Bus Lines, Inc.,appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County(Rosengarten, J.), dated July 6, 2009, as denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Green Bus Lines, Inc., for summary judgment dismissing the complaintand all cross claims insofar as asserted against it is granted.
The defendant Green Bus Lines, Inc. (hereinafter Green Bus), established its prima facieentitlement to judgment as a matter of law by demonstrating, through the submission of theplaintiff's deposition testimony, that the plaintiff did not know the cause of her alleged fall (see Morgan v Windham Realty, LLC,68 AD3d 828 [2009]; Cangro vNoah Bldrs., Inc., 52 AD3d 758, 759 [2008]; Golba v City of New York, 27 AD3d 524 [2006]; Israel v Fairharbor Owners, Inc., 20AD3d 392 [2005]; Sheffield vJoseph, 4 AD3d 522, 523 [2004]). In opposition to the motion, the plaintiff failed toraise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Her assertion that a "piece of metal sticking out of the concrete" caused her to fall wasbased on speculation. In this regard, the plaintiff stated that, the "first time" that she observed the"piece of metal" was approximately one month after the alleged incident, when she returned tothe scene with her attorney. A trier of fact would be required to base its finding of proximatecause on pure speculation (see Morganv Windham Realty, LLC, 68 AD3d 828 [2009]; Golba v City of New York, 27 AD3d 524 [2006]; Tejada v Jonas, 17 AD3d 448[2005]). Accordingly, the Supreme Court should have granted the motion by Green Bus forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it.Rivera, J.P., Dickerson, Chambers and Hall, JJ., concur.