| Blochl v RT Long Is. Franchise, LLC |
| 2010 NY Slip Op 01611 [70 AD3d 993] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Linda Blochl et al., Appellants, v RT Long IslandFranchise, LLC, Doing Business as Ruby Tuesday, Respondent. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Andrew M. Lauri of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Cozzens, J.), entered October 9, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Linda Blochl (hereinafter the plaintiff) allegedly slipped and fell in a bathroomin the defendant's restaurant on the evening of September 26, 2003. Thereafter, the plaintiff, andher husband, suing derivatively, commenced this personal injury action against the defendant.After issue was joined, the defendant moved for summary judgment dismissing the complaint,contending, inter alia, that the plaintiff could not identify the cause of her fall.
The defendant established its entitlement to judgment as a matter of law by submitting, interalia, the plaintiff's deposition testimony, in which she stated, in effect, that she did not knowwhat caused her to fall (see Hunt v Meyers, 63 AD3d 685 [2009]; Reiff vBeechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]). At her deposition, the plaintiffacknowledged that she did not see the substance which caused her to slip and fall before or afterthe accident. In opposition, the plaintiffs failed to submit evidence sufficient to raise a triableissue of fact (see CPLR 3212 [b]). The plaintiff's subsequent affidavit, in which sheaverred that she was "absolutely certain" that it was either water or paper on the floor whichcaused her to slip and fall, presented feigned issues of fact designed to avoid the consequences ofher earlier deposition testimony and, thus, was insufficient to raise a triable issue of fact (seeHughes-Berg v Mueller, 50 AD3d 856, 858 [2008]). Accordingly, the Supreme Courtproperly granted the defendant's motion for summary judgment dismissing the complaint.Skelos, J.P., Covello, Balkin and Austin, JJ., concur.