| Bardales v VAM Realty Corp. |
| 2015 NY Slip Op 00484 [124 AD3d 707] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Daniel Bardales, Appellant, v VAM RealtyCorp., Defendant/Third-Party Plaintiff-Respondent. La Bottega of Huntington, LLC,Third-Party Defendant-Respondent. |
Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker of counsel),for appellant.
Farber, Brocks & Zane, LLP, Garden City, N.Y. (Tracy L. Frankel of counsel),for defendant/third-party plaintiff-respondent.
Armiento, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (HarrietWong of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from somuch of an order of the Supreme Court, Suffolk County (Mayer, J.), dated January 29,2013, as granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with one bill ofcosts.
The defendant established its entitlement to judgment as a matter of law dismissingthe complaint through the submission of, among other things, the plaintiff's depositiontestimony, which established that he was unable to identify the cause of his fall. Whilethe plaintiff testified that the staircase handrail ended before the last step, a determinationthat this, or any of the other alleged defects in the staircase, was the proximate cause ofthe plaintiff's accident, rather than a misstep or loss of balance, would be speculative (see Alabre v Kings Flatland CarCare Ctr., Inc., 84 AD3d 1286, 1287 [2011]; Thompson v Commack Multiplex Cinemas, 83 AD3d 929,930 [2011]; Manning v 663818th Ave. Realty Corp., 28 AD3d 434, 435 [2006]; Rodriguez v Cafaro, 17 AD3d658, 658 [2005]; Birman vBirman, 8 AD3d 219 [2004]). Moreover, since the plaintiff was carrying a potweighing at least 35 to 40 pounds with both hands as he descended the staircase, anyalleged defect in the handrail was not a proximate cause of the fall (see Plowden v Stevens Partners,LLC, 45 AD3d 659, 660-661 [2007]; Pancella v County of Suffolk, 16 AD3d 566 [2005];Daria v Beacon Capital Co., 299 AD2d 312, 312 [2002]; see also Ridolfi v Williams, 49AD3d 295, 296 [2008]). In opposition, the plaintiff failed to raise a triable issue offact (see Kloepfer v Aslanis,106 AD3d 956, 956-957 [2013]; Murphy v New York City Tr. Auth., 73 AD3d 1143, 1144[2010]). The plaintiff's affidavit presented what clearly appeared to be feigned issues offact designed to avoid the consequences of his earlier deposition testimony, and thus wasinsufficient to defeat the defendant's motion (see Rivera v J. Nazzaro Partnership, L.P., 122 AD3d 826,827 [2014]).
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Mastro, J.P., Austin, Maltese and Barros,JJ., concur. [Prior Case History: 2013 NY Slip Op 30240(U).]