| Mallen v Farmingdale Lanes, LLC |
| 2011 NY Slip Op 08569 [89 AD3d 996] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Luann Mallen, Appellant, v Farmingdale Lanes, LLC,Respondent. |
—[*1] Callahan & Fusco, LLC, New York, N.Y. (Matthew D. Stockwell of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Nassau County (Iannacci, J.), entered October 7, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendant established its prima facie entitlement to judgment as a matter of law by submitting,inter alia, the deposition testimony of the plaintiff, which demonstrated that the plaintiff could not identifythe cause of her fall (see Patrick v CostcoWholesale Corp., 77 AD3d 810, 810 [2010]; Blochl v RT Long Is. Franchise, LLC, 70 AD3d 993 [2010]; Louman v Town of Greenburgh, 60 AD3d915 [2009]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's expert affidavit wasspeculative and conclusory and, therefore, insufficient to raise a triable issue of fact (see Fotiatis v Cambridge Hall TenantsCorp., 70 AD3d 631, 632 [2010]; Pappas v Cherry Cr., Inc., 66 AD3d 658, 659 [2009]; Rivas-Chirino v Wildlife ConservationSocy., 64 AD3d 556, 558 [2009]). Further, the plaintiff's contention that incident reportsregarding prior accidents raised a triable issue of fact as to whether there was a dangerous condition orwhether the defendant had notice of any such condition is speculative, as there was no evidence thatthose accidents were similar in nature to the plaintiff's accident (see Hyde v County ofRensselaer, 51 NY2d 927, 929 [1980]; Gjonaj v Otis El. Co., 38 AD3d 384, 385 [2007]). The plaintiff'sreliance upon a statement as to the cause of her accident contained in an incident report is alsounavailing, as the report contained hearsay and the plaintiff failed to lay the proper foundation for itsadmission as a business record (see CPLR 4518 [a]; Roldan v New York Univ., 81 AD3d 625, 627 [2011]; Stock v Otis El. Co., 52 AD3d 816,817 [2008]; Daliendo v Johnson, 147 AD2d 312, 321 [1989]). "Although hearsay evidencemay be considered in opposition to a motion for summary judgment, it is insufficient to bar summaryjudgment if it is the only evidence submitted" (Stock v Otis El. Co., 52 AD3d at 816-817[internal quotation marks omitted]). Accordingly, since the hearsay evidence, by itself, was insufficientto raise a triable issue of fact, and the other evidence [*2]submitted bythe plaintiff in opposition to the defendant's motion also failed to raise a triable issue of fact, theSupreme Court properly granted the defendant's motion for summary judgment dismissing thecomplaint. Mastro, J.P., Eng, Belen and Hall, JJ., concur.