| Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.—Am.Legion, Inc. |
| 2012 NY Slip Op 03145 [94 AD3d 1058] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Vincent Knudsen, Appellant, v Mamaroneck Post No. 90,Department of New York—American Legion, Inc.,Respondent. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Gregory S. Katz and Nicholas P.Hurzeler of counsel), for respondent.
In an action to recover damages for personal injuries and wrongful death, etc., the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, WestchesterCounty (Adler, J.), entered May 10, 2011, as granted the defendant's motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that the plaintiff did not know what caused the plaintiff's decedent to fall on aninterior staircase at the defendant's premises (see Yefet v Shalmoni, 81 AD3d 637 [2011]; Martone v Shields, 71 AD3d 840,840-841 [2010]; Hennington vEllington, 22 AD3d 721 [2005]; Tejada v Jonas, 17 AD3d 448 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Ghany v Hossain, 65 AD3d517 [2009]). Contrary to the plaintiff's contention, the Noseworthy doctrine (seeNoseworthy v City of New York, 298 NY 76 [1948]) does not apply in this case, since thedefendant's knowledge as to the cause of the decedent's accident is no greater than that of theplaintiff (see Zalot v Zieba, 81AD3d 935, 936 [2011]; Kuravskaya v Samjo Realty Corp., 281 AD2d 518 [2001];Gayle v City of New York, 256 AD2d 541, 542 [1998]). The plaintiff alleged that thedecedent would not have fallen down the staircase if the defendant had properly latched theboiler room door, or configured it so that it did not swing open over the steps. Additionally, theplaintiff's expert opined in an affidavit that the configuration of the door and staircase violated,among other things, a provision of the Executive Law. However, the plaintiff's evidence did notraise a triable issue of fact as to whether the decedent's fall was proximately caused by thoseallegedly unsafe conditions (see Noel vStarrett City, Inc., 89 AD3d 906 [2011]; Ghany v Hossain, 65 AD3d at 517; Guiterrez v Iannacci, 43 AD3d868 [2007]; Tejada v Jonas, 17AD3d 448 [2005]; Curran v Esposito, 308 AD2d 428 [2003]; Birman v Birman, 8 AD3d 219[2004]; cf. Griffin v Sadauskas, 14AD3d 930 [2005]). "Since it is just as likely that the accident could have been caused by[*2]some other factor, such as a misstep or loss of balance, anydetermination by the trier of fact as to the cause of the accident would be based upon sheerspeculation" (Teplitskaya v 3096 Owners Corp., 289 AD2d 477, 478 [2001]; see Ghany v Hossain, 65 AD3d517 [2009]; Reiff v BeechwoodBrowns Rd. Bldg. Corp., 54 AD3d 1015 [2008]; Hennington v Ellington, 22AD3d at 721-722).
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Balkin, J.P., Leventhal, Roman and Sgroi, JJ., concur.