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Aprea-Smith v. Smith

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


March 30, 2010

ANGELINA APREA-SMITH, ET AL., APPELLANTS,
v.
MIKE SMITH, RESPONDENT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Starkey, J.), dated January 13, 2009, which granted the defendant's 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.

JOSEPH COVELLO, J.P., ANITA R. FLORIO, HOWARD MILLER and RANDALL T. ENG, JJ.

(Index No. 2667/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The injured plaintiff and her husband, suing derivatively, commenced this action to recover damages for personal injuries allegedly sustained by the injured plaintiff when she fell while descending an interior staircase within residential premises the plaintiffs leased from the defendant. At her deposition, the injured plaintiff testified that she could not explain how she fell.

The defendant made a prima facie showing of entitlement to judgment as a matter of law by establishing that the injured plaintiff was unable to identify the cause of her fall (see Lissauer v Shaarei Halacha, Inc., 37 AD3d 427, 427). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Lissauer v Shaarei Halacha, Inc., 37 AD3d at 427). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

COVELLO, J.P., FLORIO, MILLER and ENG, JJ., concur.

20100330

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