Romanowski v. Yahr

Pigott, Jr., P.J., and Hurlbutt, J. (dissenting).

We respectfully dissent. In support of their summary judgment motion, defendants submitted the deposition testimony of plaintiff that she did not know what caused her to fall; that her foot did not slip; that she did not trip or stub her toe; and that she could not remember whether she “missed a step.” Contrary to the conclusion of the majority, that evidence is sufficient to establish defendants’ entitlement to summary judgment dismissing the complaint, because it “ demonstrates] that any determination as to what caused the plaintiff to fall would be based on speculation” (Koller v Leone, 299 AD2d 396, 397 [2002]; see Curran v Esposito, 308 AD2d 428, 429 [2003]; Zimmerman v Yuskevich, 306 AD2d 403 [2003]; see also Novoni v La Parma Corp., 278 AD2d 393 [2000]). Contrary to the further conclusion of the majority, the affidavit of plaintiffs expert does not raise an issue of fact whether the alleged building code violation was a proximate cause of plaintiffs fall. Rather, the expert’s assertion that the out-of-level stair treads may have contributed to plaintiffs fall “was not based on admissible evidence in the record, was purely speculative, and was insufficient to raise a triable issue of fact” (Koller, 299 AD2d at 397; see Curran, 308 AD2d at 429; see also Bitterman v Grotyohann, 295 AD2d 383, 384 [2002]; cf. Feldman *987v Dombrowsky, 288 AD2d 605, 606 [2001]). We would therefore reverse the order, grant defendants’ motion and dismiss the complaint. Present—Pigott, Jr., P.J., Green, Hurlbutt, Gorski and Lawton, JJ.