| Rodrigues v Village of Ossining |
| 2010 NY Slip Op 06575 [76 AD3d 962] |
| September 14, 2010 |
| Appellate Division, Second Department |
| Joseph Rodrigues, as Administrator of the Estate of John PaulRodrigues, Deceased, Appellant, et al., Plaintiffs, v Village of Ossining et al.,Defendants, and R. Barlaam, Respondent. |
—[*1] Susan B. Owens, White Plains, N.Y. (Joseph M. Zecca of counsel), for respondent.
In an action to recover damages for wrongful death, etc., the plaintiff Joseph Rodriguesappeals from an order of the Supreme Court, Westchester County (DiBella, J.), enteredNovember 24, 2009, which granted the motion of the defendant R. Barlaam for summaryjudgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
John Paul Rodrigues (hereinafter the decedent) allegedly died as a result of injuries sustainedafter he fell from the sanitation truck upon which he was working. The plaintiffs commenced thisaction alleging, inter alia, that the defendant R. Barlaam's negligent driving caused the sanitationtruck to make evasive maneuvers which, in turn, caused the decedent to fall from the truck,resulting in his fatal injuries.
Barlaam established his prima facie entitlement to judgment as matter of law by submitting,among other things, his deposition testimony, as well as that of the driver of the sanitation truckand one of his crew members, all of whom were present at the time of the accident. Thetestimony demonstrated, in essence, that the driver of the sanitation truck was not caused to makeany evasive maneuvers while driving at any time prior to the decedent's fall.
The plaintiff's submissions in opposition did not raise a triable issue of fact (see Murphy v New York City Tr.Auth., 73 AD3d 1143 [2010]; Douse v City of New York, 70 AD3d 764 [2010]). The plaintiffsubmitted, inter alia, the affidavit of a certified accident reconstruction expert, who stated that theonly way this accident could have happened was if the truck driver was caused to make evasivemaneuvers as a result of Barlaam negligently exiting his driveway in his car, thus causing thedecedent's fall. This conclusion, however, was speculative and conclusory, and it is belied by thecollective testimony of the truck driver, his coworker, and Barlaam (see Murphy v New YorkCity Tr. Auth., 73 AD3d at 1143). Accordingly, the Supreme Court properly grantedBarlaam's motion for summary judgment dismissing the complaint insofar as asserted againsthim. Skelos, J.P., Hall, Roman and Sgroi, JJ., concur.