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Costantino v. Webel

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


December 2, 2008

DANIELLE COSTANTINO, APPELLANT,
v.
STEVEN FRANCIS WEBEL, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated January 30, 2008, which granted the defendants' motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., ROBERT A. LIFSON, FRED T. SANTUCCI & RUTH C. BALKIN, JJ.

(Index No. 2017/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident; however, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action (see Oettinger v Amerada Hess Corp., 15 AD3d 638). In this case, the defendants made a prima showing of entitlement to judgment as a matter of law by establishing that the plaintiff could not identify the cause of her fall without engaging in speculation (see Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434; Christopher v New York City Trans. Auth., 300 AD2d 336; Barnes v Di Benedetto, 294 AD2d 655).

In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557). The affidavit of her expert, which alleged that unsafe conditions in the doorway where the plaintiff fell violated various provisions of the building code, could not create a reasonable inference of causation in the absence of evidence connecting the alleged violations to the accident (see Reiff v Beechwood Browns Rd. Bldg. Corp., 54 AD3d 1015; Reed v Piran Realty Corp., 30 AD3d 319). A determination that the alleged building code violations proximately caused the plaintiff's fall, rather than a misstep or loss of balance, would be mere speculation (see Lissauer v Shaarei Halacha, Inc., 37 AD3d 427).

SKELOS, J.P., LIFSON, SANTUCCI and BALKIN, JJ., concur.

20081202

© 1992-2008 VersusLaw Inc.



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